North Carolina register

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NORTHCAROLINA
MEGISfER
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
RECEIVED
JUN 6 2000
KATHRJNE R. EVERETT
LAW LIBRARY
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Admmistrative Procedure Act or any of itsi
components, consult with the agencies below. The bolded headings are typical issues which the given"
agency can address, but are not inclusive.
Rule Notices. Filings. Register. Deadlines, Copies of Proposed Rules, etc
Office of Administrative Hearings
Rules Division
Capehart-Crocker House fW _.,,,.wh---- (919)733-2678
424 North Blount Street ""^ .-^TT^--'" (919) 733-3462 FAX
Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services
Ruby Creech, Publications Coordinator
///
"
Fiscal Notes & Economic Analysis
Office of State Budget and Management
116 West Jones Sti-eet
f Raleigh, North Carolina 27603-8005
contact: Warren Plonk, Economist III
Molly.Masich@ncmail.net
Ruby.Creech@ncmail.net
(919) 733-7061
(919) 733-0640 FAX
Warren.Plonk@ncniail.net
Riile Review and Legal Issues
Rules Review Commission
U 1307 Glenwood Ave., Suite 159
\
l\ Raleigh, North Carolina 27605 j \»»
Y contact: Joe DeLuca Jr., Staff Director Counsel
Bobby Bryan, Staff Attorney
\ \ — x\ '"*'
(919) 733-2721
(919) 733-9415 FAX
Legislative Process Concerning Rule-making ^^ «»*«*t1
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building ._ ^
300 North Salisbury Street '*^^~^^ (919)733-2578
Raleigh, North Carolina 27611 >-J"7'^-^^^^^^^^ (919) 715-5460 FAX
contact: MaryShuping, Staff Liaison j€^ _
marysi@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Sti-eet (9 1 9) 7 1 5-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Mimicipalities
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
Volume 14, Issue 23
Pages 2023 - 2079
I. IN ADDITION
Voting Rights Letters 2023 - 2026
n. RULE-MAKING PROCEEDINGS
Administrative Hearings, Office of
Hearings Division 2028 - 2029
Healtti and Human Services
Facility Services 2027
Insurance
Actuarial Services Division 2027
Property and Casualty Division 2027
Labor
OSHA 2027 - 2028
Licensing Boards
Dental Examiners 2028
Transportation
Motor Vehicles, Division of 2028
June 1, 2000
This issue contains documents officially filed
throughMay 10, 2000.
III. PROPOSED RULES
Agriculture
Hurricane Floyd Recovery Programs 2032 - 2034
Structural Pest Control Division 2030 - 2031
Veterinary Division 203 1 - 2032
Labor
Departmental Rules 2034 - 2040
Elevator and Amusement Device Div 2040
Licensing Boards
Auctioneers, Commission for 2040 - 2053
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Jessica Flowers, Editorial Assistant
Dana Sholes, Editorial Assistant
rV. TEMPORARY RULES
Election, Board of
Ballot Rotation Rules for Primary
Election Ballots 2054
V. RULES REVIEW COMMISSION 2055 - 2058
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 2059 - 2070
Text of Selected Decisions
99 EHR 0980 2071 - 2076
99 EHR 0989 2071 - 2076
99 EHR 1084 2071 - 2076
99 OSP 1 135 2077 - 2079
VII. CUMULATFVE INDEX 1-113
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register,
PC Drawer 27447. Raleigh, NC n(,\\-lAAl.
NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM
The North Carolina Administrative Code (NCAC) hasfour major subdivisions ofrules. Two ofthese, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when
appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS (CHAPTER
1 Administration Acupuncture 1
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resoiu-ces Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 22
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Massage & Bodywork Therapy 30
*21 Occupational Licensing Boards Marital and Family Therapy 31
22 Administrative Procediu'es (Repealed) Medical Examiners 32
23 Community Colleges Midwifery Joint Committee 33
24 Independent Agencies Mortuary Science 34
25 State Personnel Nursing 36
26 Administrative Hearings Nursing Home Administrators 37
27 NC State Bar Occupational Therapists 38
Opticians 40
Optometry 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors, Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Siureyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Veterinary Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
I
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INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:JBG:TGL:nj Voting Section
DJ 166-012-3 PO. Box 66128
2000- 1014 Washington. D. C. 20035-6128
2000-1161
April 18,2000
Robert C. Cogswell, Jr., Esq.
City Attorney
P.O.Box 1513
Fayetteville, North Carolina 28302-1513
Dear Mr. Cogswell:
This refers to seven annexations (Ordinance Nos. 99-05-436, 99-05-437, 99-07-438, 99-1 0-439, 99-1 1 -440, 99-1 1 -441 , and
99- 1 2-442), their designation to districts, and the procedures for conducting the May 2, 2000, special charter amendment election for
the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 ofthe Voting
Rights Act, 42, U.S.C. 1973c. We received your submissions on March 8 and 16, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure ofthe Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the procedures for
the Administration of Section 5 (28 C.F.R. 51.41 and 51.43).
Section 5 preclearance should be sought for any changes from existing voting practices adopted as a result of the special
election. Your submission of such changes should include the relevant sections ofthe existing charter as well as the amended versions
of those sections. See C.F.R. 51.27
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
14:23 NORTH CAROLINA REGISTER June 1,2000 2023
INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:GLH:KIF:par Voting Section
DJ 166-012-3 PO. Box 66128
2000-0797 Washington. D.C. 20035-6128
2000-7207
April 25, 2000
David A. Holec, Esq.
City Attorney
P.O. Box 7207
Greenville, North Carolina 27835-7207
Dear Mr. Holec:
This refers to 1 1 annexations (Ordinance Nos. 109 through 113, 134, 135, 147 through 149, and 155 (1999)) and their
designation to council districts of the City of Greenville in Pitt County, North Carolina, submitted to the Attorney General piu-suant
to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on February 25 and March 13, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes.
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for
the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
(
2024 NORTH CAROLINA REGISTER June 1, 2000 14:23
INADDITION
'
U.S. Department of Justice
Civil Rights Division
JDR:DEBR:JGD:nj:jdh Voting Section
DJ 166-012-3 PO. Box 66128
2000-0802 Washington, D.C. 20035-6128
April 25, 2000
Donald I. McRee, Jr., Esq.
County Attorney
P.O. Box 39
Elizabeth City, North Carolina 27907-0039
Dear Mr. McRee:
This refers to the realignment ofvoting precincts for Pasquotank County, North Carolina, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on February 25, 2000; supplemental
information was received on April 19, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change.
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
cc: Ms. Glenda W. Crane
Director, Pasquotank County Board of Elections
<
14:23 NORTH CAROLINA REGISTER June 1,2000 2025
INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:JBG;JGD:nj Voting Section
DJ 166-012-3 PO. Box 66128
2000-0976 Washington, D.C. 20035-6128
May 3, 2000
Albert M. Benshoff, Esq.
City Attorney
P.O. Box 1388
Lumberton, North Carolina 28539
Dear Mr. Benshoff:
This refers to four annexations (adopted on June 28 and September 13,1 999) and their designatio to districts of the City of
Lumberton in Robeson County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, j
42 U.S.C. 1973c. We received your submissions on March 6, 2000. ^
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes.
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
\
2026 NORTH CAROLINA REGISTER June 1, 2000 14:23
RULE-MAKING PROCEEDINGS
A Notice ofRule-making Proceedings is a statement ofsubject matter ofthe agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text ofa rule.
Publication ofa temporary rule serves as a Notice ofRule-making Proceedings and can befound in the Register under the
section heading ofTemporary Rules. A Rule-making Agendapublished by an agency serves as Rule-making Proceedings and
can befound in the Register under the section heading ofRule-making Agendas. Statutory reference: G.S. 150B-2L2.
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
CHAPTER 3 - FACILITY SERVICES
Ty Totice ofRule-making Proceedings is hereby given by the
1 y North Carolina Medical Care Commission in accordance
with G.S. 150B-21.2. The agency shall subsequently publish in
the Resister the text ofthe rule(s) itproposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 10
NCAC 3Q - Other rules may be proposed in the course of the
rule-making process.
Authority for the rule-making: G.S 131E-147; 131E-149
Statement of the Subject Matter: The rules pertain to
licensing requirementsfor ambulatory surgeryfacilities.
Reason for Proposed Action: The purpose ofthe rule-making
will be to more explicitly define whichfacilities are required to
be licensed and tofurther clarify requirementsfor licensure.
21-35; 58-50-130
Statement of the Subject Matter: Surplus lines insurance and
small employer group health insurance.
Reason for Proposed Action: Changes in surplus lines rules to
reflect changes in statutes; and repeal ofobsolete rulesfor small
employer group health insurance.
Comment Procedures: Written comments should be sent to
Ellen K. Sprenkel, N.C Department of Insurance, P.O. Box
26387, Raleigh, NC 27611.
TITLE 13 - DEPARTMENT OF LABOR
CHAPTER? -OSHA
'K Totice ofRule-making Proceedings is hereby given by the
ly N.C. Department of Labor in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Comment Procedures: Written comments should be submitted
to Jackie R. Shepard, Rule-making Coordinator, Division of
Facility Services, 2701 Mail Service Center, Raleigh, NC
27699-2701. Telephone: (919)733-2342.
Citation to Existing Rules Affected by this Rule-Making: 13
NCAC 7F. 0101, .0201, 0401 - Other rules may beproposed in
the course ofthe rule-making process.
Authority for the rule-making: G.S. 95-4; 95-131; 95-133;
TITLE 11 - DEPARTMENT OF INSURANCE
CHAPTER 10 - PROPERTY AND CASUALTY
DIVISION
CHAPTER 16 - ACTUARIAL SERVICES DIVISION
'\ Totice ofRule-making Proceedings is hereby given by the
lyN.C. Department of Insurance in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: / /
NCAC 10 .0700; 11 NCAC 16 .0300 - Other rules may be
proposed in the course ofthe rule-making process.
Authority for the rule-making: G.S. 58-2-40; 58-21-15; 58-
Statement of the Subject Matter: The N.C. Division of
Occupational Safety and Health (OSHNC) is presently
developing rules to protect workers during the construction,
erection, installation, operation, maintenance, and disassembly
of communication towers. It is the goal of the Department to
amend existing rules relating to the safe installation, operation,
maintenance, rearrangement and removal of equipment,
including, but not limited, to conductors used for signal or
communication service or relating to support structures and
containing structures.
Reason for Proposed Action: Changes in technology and
equipment in recent years have brought about a significant
increase in the number of communication towers. Injuries
involving falls from communication towers are serious, if not
fatal. Communication towers are not adequately addressed in
the Federal Occupational Safety and Health Standards for
General Industry, for the Construction Industry or in the North
Carolina Standardsfor Shops Fabricating Structural Steel and
14:23 NORTH CAROLINA REGISTER June 1, 2000 2027
RULE-MAKING PROCEEDINGS
Steel Plate, as adopted verbatim or amended by the N.C.
Department of Labor's Occupational Safety and Health
Division. North Carolina's Occupational Safety and Health
Standards are being amended to clarify employer
responsibilities in regard to matters such as, but not limited to,
personal protective equipment (PPE) for workers during
construction ofandworkon andaround communication towers.
'\ jotice ofRule-making Proceedings is hereby given by the
ly N.C. State Board ofDental Examiners in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Resjster the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Comment Procedures: Written comments must be submitted to
Angela S. Waldorf N.C. Department of Labor, 4 W. Edenton
Street, Raleigh, NC 27601.
TITLE 19A - DEPARTMENT OF TRANSPORTATION
CHAPTER 3 - DIVISION OF MOTOR VEHICLES
Citation to Existing Rules Affected by this Rule-Maldng: 21
NCAC MB .0306; 161 .0101-.0109; 16R .0101-.0105; 16Q
.0101, .0202-.0205, .0301-.0303, .0401-.0403, .0501-.0502,
.0601 - Other rules may be proposed in the course ofthe rule-making
process.
Authority for the rule-making: G.S 90-28; 90-29; 90-30; 90-
30.1; 90-48; 90-222; 90-225.1
A Jotice ofRule-making Proceedings is hereby given by the
ly Division of Motor Vehicles in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
19A NCAC 03D .0519 - Other rules may be proposed in the
course ofthe rule-making process.
Authority for the rule-making: G.S. 20-2; 20-39; 20-183.4;
183.8A
Statement of the Subject Matter: Rules state conditions under
which licensed emissions inspection stations conduct vehicle
inspections.
Reason for Proposed Action: Federal Register 40 CFR, Part
51.361(a) requires states to enforce a registration denial
program which refuses renewal ifa vehicle is not in compliance
with emissions inspection requirements. G.S. 120-183. 8A
requires N.C. DMV to assess a civil penalty if a vehicle is not
inspected within 4 months ofsticker expiration. Amendments to
this Rule set software requirements for stations to transfer
information to and receive emissions confirmationfrom DMVby
telephone. Two telephone calls per transaction are required.
Amendments to this Rule require that the emission stations pay
charges directly to the telephone contractor.
Comment Procedures: Any interested person may submit
written comments on theproposed rule by mailing the comments
to Emily Lee, N.C. DOT, 1501 Mail Service Center, Raleigh, NC
27699-1501 by September 15, 2000.
TITLE 21 - OCCUPATIONAL LICENSING BOARDS
CHAPTER 16 - NORTH CAROLINA STATE BOARD
OF DENTAL EXAMINERS
Statement of the Subject Matter: Notice is hereby given in
accordance with G.S. 150B-21.2 that the North Carolina State
Board of Dental Examiners (Board) will consider adopting
rules, repealing rules, or amending rules addressing foreign
graduates applying as candidatesfor examination, management
arrangements, continuing education reporting requirementsfor
dentists and dental hygienists, and general anesthesia and
sedation requirements.
Reason for Proposed Action: To revise requirements for
foreign graduates applying as candidatesfor examination; to set
out requirements for management arrangements; to revise
continuing education reporting requirements for dentist and
dental hygienists; to revise general anesthesia and sedation
requirements.
Comment Procedures: Written comments may be submitted on
the subject matter ofthe proposed rule-making to Christine H.
Lockwood, Executive Director ofthe Boardat the Board's office.
The Board's address is P.O. Box 32270, Raleigh, NC 27622-
2270.
TITLE 26 - OFFICE OF ADMINISTRATIVE
HEARINGS
CHAPTER 26 - HEARINGS DIVISION
TV Totice ofRule-making Proceedings is hereby given by the
1 V Office ofAdministrative Hearings in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
26 NCAC 3 - Other rules may be proposed in the course ofthe
rule-making process.
2028 NORTH CAROLINA REGISTER June 1, 2000 14:23
RULE-MAKING PROCEEDINGS
Authority for the rule-making: G.S. 7A-751
Statement of the Subject Matter: To adopt or amend rules
related to Administrative Law Judge and mediation settlement
conferences: and the use ofinterpreters in the hearing process.
Reason for Proposed Action: The contested case mediation
and Administrative Law Judge settlement conference rules are
in need of conformity with the current procedures and rules
adopted for the superior courts by the Dispute Resolution
Commission and approved by the Supreme Court. OAH also
will adopt rules governing the use ofsign language interpreters
to accommodatepersons who are hearing impaired to conform
with current state andfederal rules, and to adopt other rules
governing the use of foreign language interpreters in the
contested case process.
Comment Procedures: Comments should be addressed to Joey
Propst, OAH, 6714 Mail Service Center, Raleigh, NC27699-6714.
I
14:23 NORTH CAROLINA REGISTER June 1, 2000 2029
PROPOSED RULES
This Section contains the text ofproposed rules. At least 60 days prior to the publication oftext, the agency published a Notice
ofRule-making Proceedings. The agency must accept comments on the proposed rulefor at least 30 daysfrom thepublication
date, or until the public hearing, or a later date ifspecified in the notice by the agency. The required commentperiod is 60 days
for a rule that has a substantial economic impact ofat leastfive million dollars ($5, 000, 000). Statutory reference: G.S. 150B-
21.2.
TITLE 2 - DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2
that the N.C. Structural Pest Control Committee intends to
amend rules cited as 2 NCAC 34 . 0505-. 0506. Notice ofRule-making
Proceedings was published in the Register on April 3,
2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to Carl Falco,
Secretary, N.C. Structural Pest Control Committee, P.O. Box
27647, Raleigh, NC 27611.
Reason for Proposed Action: This action was initiated as a
result of a petition submitted by Ron Schwalb, Nisus
Corporation.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to Carl Falco, Secretary, N.C. Structural
Pest Control Committee, P.O. Box 27647, Raleigh, NC 27611.
State
Fiscal Impact
Local Sub. None
•
CHAPTER 34 - STRUCTURAL PEST CONTROL
DIVISION
SECTION .0500 - WOOD-DESTROYING INSECTS
.0505 SUBTERRANEAN TERMITE
PREVENTION/RES BLDGS UNDER CONST
(a) All treatments performed pursuant to this Rule shall be
performed at the label recommended rate and concentration only.
(b) Basement or Crawl Space Construction
(1) Establish a vertical barrier in the soil by trenching or
trenching and rodding along inside of the main
foundation wall; the entire perimeter of all multiple
masonry chimney bases, pillars, pilasters, and piers;
and both sides of partition or inner walls with a
termiticide from the top of the grade to the top of the
footing or to a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
but not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the top of the
footing, whichever is less. Where drain tile, french
drains, or other foundation drainage systems present
a hazard of contamination outside the treatment zone,
treatment shall be performed in a maimer that will not
introduce termiticide into the drainage system.
(2) After a building or structure has been completed and
the excavation filled and leveled, so that the final
grade has been reached along the outside of the main
foundation wall, including any landscaping to be
completed by the builder, establish a vertical barrier in
the soil by trenching or trenching and rodding
adjacent to the outside of the main foundation wall
with a termiticide from the top of the grade to the
bottom of the footing or to a minimum depth of 30
inches, whichever is less. Where footings are
exposed, treatment shall be performed adjacent to the
footing and not below the bottom of the footing.
Trench shall be no less than six inches in depth or to
the bottom of the footing, whichever is less. Where
drain tile, french drains, or other foundation drainage
systems present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
maimer that will not infroduce termiticide into the
drainage system.
(3) Establish a horizontal termiticide barrier in the soil
within three feet of the main foundation, under slabs,
such as patios, walkways, driveways, terraces, gutters,
etc., attached to the building. Treatment shall be
performed before slab is poured, but after fill material
or fill dirt has been spread.
(4) Establish a horizontal termiticide barrier in the soil
under the entire surface of floor slabs, such as
basements, porches, entrance platforms, garages,
carports, breezeways, sun rooms, etc. The treatment
shall be performed before slab is poured but after fill
material or fill dirt has been spread.
(5) Establish a vertical termiticide barrier in the soil
around all critical areas, such as expansion and
construction joints and plumbing and utility conduits,
at their point of penetration of the slab or floor or, for
crawl space construction, at the point of contact with
the soil.
(6) If concrete slabs are poured prior to treatment,
treatment of slabs shall be performed as required by 2
NCAC 34 .0503(a) or (b): Except that; the buyer of
the property and/or his authorized agent may release
the licensee from further treatment of slab areas under
this Rule provided such release is obtained in writing
on the form prescribed by the Division. This form
may be obtained by writing the North Carolina
Department of Agriculture and Consumer Services,
2030 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
Structural Pest Control Division, PO Box 27647,
Raleigh, NC 2761 1 or by calling (919) 733-6100.
(c) Slab-on-Ground Construction. All parts of Paragraph (a)
of this Rule shall be followed, if applicable, in treating
slab-on-ground construction.
(d) All treating requirements specified in this Rule shall be
completed within 60 days following the completion of the
structure, as described in Subparagraph (b)(2) of this Rule.
(e) Paragraphs (b) and (c) of this Rule shall not apply to
subterranean termite treatment performed using termite bait(s)
labeled for protection of the entire structure when the licensee
provides a warranty for the control of subterranean termites on
the entire structure.
(f) Paragraphs (b) and (c) of this Rule shall not apply to
subterranean termite treatment performed using EPA registered
topicallv applied wood treatment termiticides labeled for the
protection of the entire structure when the licensee applies the
material according to labeled directions and provides a warranty
for the control of subterranean termites on the entire structure.
Authority G.S. 106-65.29.
.0506 MIN REQUIRE/SUBTERRANEAN TERMITE
PREV/COMMERCIAL BLDGS UNDERCONST
(a) All treatments performed pursuant to this Rule shall be
performed at the label recommended rate and concentration only.
(b) Minimum Treatment Requirements:
(1) Establish a vertical barrier in the soil by trenching or
trenching and rodding along inside of the main
foundation wall; the entire perimeter of all multiple
masonry chimney bases, pillars, pilasters, and piers;
and both sides of partition or inner walls with a
termiticide from the top of the grade to the bottom of
the footing or a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
but not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the bottom of
the footing, whichever is less. Where drain tile,
french drains, or other foundation drainage systems
present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
marmer that will not introduce termiticide into the
drainage system.
(2) After a building or structure has been completed and
the excavation filled and leveled, so that the final
grade has been reached along the outside of the main
foundation wall, including any landscaping to be
completedby the builder, establish a vertical barrier in
the soil adjacent to the outside of the main foundation
wall by trenching or trenching and rodding with a
termiticide fi'om the top of the grade to the top of the
footing or to a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
and not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the bottom of
the footing, whichever is less. Where drain tile.
french drains, or other foundation drainage systems
present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
manner that will not introduce termiticide into the
drainage system.
(3) Establish a horizontal termiticide barrier in the soil
within three feet of the main foundation, under slabs,
such as patios, walkways, driveways, terraces, gutters,
etc. Treatment shall be performed before slab is
poured but after fill material or fill dirt has been
spread.
(4) Establish a vertical termiticide barrier in the soil
around all critical areas, such as expansion and
construction joints and plumbing and utility conduits,
at their point of penetration of the slab of floor, or for
crawl space construction, at the point of contact with
the soil.
(5) If concrete slabs are poured prior to treatment,
treatment of slabs shall be performed as required by 2
NCAC 34 .0503(a) or (b).
(c) Paragraph (b) of this Rule shall not apply to subterranean
termite treatment performed using termite bait(s) labeled for
protection of the entire structure when the licensee provides a
warranty for the control of subterranean termites on the entire
structure.
(d) Paragraph (b) of this Rule shall not apply to subterranean
termite treatments using EPA registered topically applied wood
treatment termiticides labeled for the protection of the entire
structure and the licensee applies the material according to
labeled directions and provides a warranty for the control of
subterranean termites on the entire structure. When foundation
areas contain no wood or cellulose components and the wood
treatment termiticide cannot be applied according to label
directions then applications specified in Paragraph (b) or (c) of
this Rule would be required.
Authority G.S. 106-65.29.
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Board of Agriculture intends to
amend rules cited as 2 NCAC 523 . 0208-. 0209. Notice ofRule-making
Proceedings was published in the Register on April 3,
2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to David S.
McLeod, Secretary, North Carolina Board ofAgriculture, PO
Box 27647, Raleigh, NC 27611.
Reason for Proposed Action: Brucellosis and tuberculosis is
known to exist in goat and sheep herds in other states. The
14:23 NORTH CAROLINA REGISTER June 1, 2000 2031
PROPOSED RULES
proposed change is necessary to prevent the introduction and
spread ofthese diseases in North Carolina.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to David S. McLeod, Secretary, North
Carolina Board of Agriculture, PO Box 27647, Raleigh, NC
27611.
Fiscal Impact
State Local Sub. None
CHAPTER 52 - VETERINARY DIVISION
SUBCHAPTER 52B - ANIMAL DISEASE
SECTION .0200 - ADMISSION OF LIVESTOCK TO
NORTH CAROLINA
when it can be determined that the sheep will be isolated from
other animals at the North Carolina destination until dipped.
(d) Sheep consigned for the purpose of immediate slaughter
to a recognized stockyard, or to a slaughtering establishment
with state or federal inspection may be imported without a health
certificate. A waybill or certificate marked for immediate
slaughter must accompany such shipments.
(e) Sheep over six months of age and sexually intact imported
from out-of-state shall have a negative brucellosis test within 30
days prior to import, and all imports must have a negative
tuberculosis test within 60 days prior to import unless they
originate from a certified and accredited herd unless they are
consigned to a slaughtering establishment under state or federal
inspection.
Authority G.S. 106-307.5.
.0208 IMPORTATION REQUIREMENTS: GOATS
Goat s All goats entering the state for dairy, breeding except
those consigned to a federal or exhibition purposes state-inspected
slaughteringestablishment shall be accompanied by an
official health certificate from the state of origin. The health
certificate shall state that the goats were clinically free of any
infectious or communicable disease. The health certificate shall
include a description of each animal, the age, sex, breed and
color or marking shall be given. No health certificate is required
for goats cons igned to a slaughtering establishment under state
or federal inspection. Goats over six months of age and sexually
intact imported from out-of-state shall have a negative
brucellosis test within 30 days prior to import, and all imports
over six months of age must have a negative tuberculosis test
within 60 days prior to import unless they originate from a
certified and accredited herd or unless they are consigned to a
slaughtering establishment under state or federal inspection.
Authority G.S. 106-307.5; 106-396
.0209 IMPORTATION REQUIREMENTS: SHEEP
(a) The health certificate covering the importation of sheep
shall include a report of inspection by a veterinarian approved by
the chief livestock sanitary official of the state of origin
indicating the sheep are not under quarantine and are free from
signs of any infectious or communicable disease. The health
certificate shall contain a statement that the flock of origin has
not had scrapie diagnosed within the past 42 months.
(b) Sheep which have not been handled in stockyards, stock
pens or on premises in public use for livestock may be imported
without dipping, from a state or area designated as scabies-free
by the United States Department of Agriculture.
(c) Unless waived by the State Veterinarian, sheep for
purposes other than immediate slaughter that have not been
dipped in accordance with the regulations of the Animal and
Plant Health Inspection Service, Veterinary Services, United
States Department of Agriculture may not be imported into the
state. While in transit they shall be accompanied by a certificate
of such dipping. The requirements for dipping will be waived
Notice is hereby given in accordance with G.S. 1508-21.
2
that the N.C. Department of Agriculture and Consumer
Services intends to adopt rules cited as 2 NCAC 55 .OlOl-.Ol 04;
.0201-.0203; .0301-.0303; .0401-.0403; .0501 -.0503. Notice of
Rule-making Proceedings was published in the Register on
March 1, 2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to David S.
McLeod, APA Coordinator, N.C. Department ofAgriculture and
Consumer Services, Legal Affairs Office, PO Box 27647,
Raleigh, NC 27611.
Reason for Proposed Action: The proposed rules implement
Hurricane Floyd recovery assistanceprogramsfor agriculture,
pursuant to the Hurricane Floyd Recovery Act of 1999, S.L.
1999-463.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to David S. McLeod, APA Coordinator,
N.C. Department ofAgriculture and Consumer Services, Legal
Affairs Office, PO Box 27647, Raleigh. NC 27611.
Fiscal Impact
State Local Sub. None
CHAPTER 55 - HURRICANE FLOYD RECOVERY
PROGRAMS FOR AGRICULTURE
SECTION .0100 - PURPOSE; AVAILABILITY OF
FUNDS; DEFINITIONS; EXPIRATION
.0101 PURPOSE
The purpose of this Chapter is to establish guidelines for the
2032 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
implementation of disaster assistance programs for farmers who
suffered losses as a result of Hurricane Floyd. The assistance Authority S.L 1999-463, s. 4.
provided under this Chapter is intended to supplement federal
disaster assistance programs. This program is authorized by the
Hurricane Floyd Recovery Act, Session Law 1999-463 of the
1999 Extra Session of the General Assembly.
Authority S.L. 1999-463, s. 4.
.0102 AVAILABILITY OF FUNDS
The assistance programs described in this Chapter are subject
to the availability of funds from the Hurricane Floyd Reserve
Fund in the Office of State Budget and Management, or from
other sources. This program shall be administered in accordance
with the Hurricane Floyd Recovery Act and the requirements of
the Office of State Budget and Management.
Authority S.L. 1999-463, s. 4.
.0103 DEFINITIONS
As used in this Chapter:
(1) "Commissioner" means the Commissioner of
Agriculture.
(2) "Department" means the Department of Agriculture
and Consumer Services.
.0203 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of funds, assistance may be provided in
amounts not to exceed:
(1) 1 7 percent of a producer's crop loss as docimiented by
USDA-FSA: and
(2) 30 percent of a producer's livestock loss as
documented by USDA-FSA.
Authority S.L. 1999-463, s. 4.
SECTION .0300 - STRUCTURES AND EQUIPMENT
LOSS ASSISTANCE
.0301 ELIGIBILITY FOR ASSISTANCE
A farm owner or operator whose uninsured farm structures,
farm roads or farm equipment were damaged or destroyed as a
result of Hurricane Floyd may submit an application for
assistance under this program to the USDA-FSA county office
on a form provided by the Department. "Structures" shall not
include lagoons, as defined in G.S. 106-802. Applications must
be received in the USDA-FSA county office by March 15. 2000.
(3) "Disaster area" means the counties that were declared Authority S.L. 1999-463, s. 4.
a disaster by the President of the United States as a
result of Hurricane Floyd.
(4) "FSA" means the Farm Service Agency of the United
States Department of Agriculture.
(5} "USDA" means the United States Department of
Agriculture.
Authority SL 1999-463, s. 4.
.0104 EXPIRATION
This Chapter shall expire on December 3 1 . 2000.
Authority S.L. 1999-463, s. 4.
SECTION .0200 - CROP LOSS AND LIVESTOCK
ASSISTANCE
.0302 APPLICATION PROCEDURES
Applications shall be forwarded by USDA-FSA to the
Department. The Department shall determine eligibility for
assistance based on information provided by the farm owner or
operator in the application. The application shall include:
(1) a copy of an invoice or estimate for repairs, not to
exceed fair market value prior to Hurricane Floyd; or
(2} in the case of a total loss, a copy of an appraisal of the
fair market value prior to Hurricane Floyd.
The invoice, estimate, appraisal or other supporting
information must have been prepared by a person who is known
to be competent to prepare such estimates or appraisals and who
has no financial interest in the applicant's farm operations.
Authority S.L. 1999-463, s. 4.
.0201 ELIGIBILITY FOR ASSISTANCE
A producer who is eligible for crop or livestock disaster
assistance from USDA-FSA shall be eligible for assistance
under this program. In addition, a producer who is not eligible
for federal assistance may be eligible for assistance under this
program if he or she has a loss documented by USDA-FSA. A
"swine operation integrator." as defined in G.S. 143-215. lOH.
shall not be eligible for livestock loss assistance.
Authority S.L. 1999-463, s. 4.
.0202 APPLICATION PROCEDURES
Assistance under this program shall be based on informafion
provided to the Department by USDA-FSA. No additional
application shall be required.
.0303 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of funds, assistance may be provided in
amounts not to exceed 40 percent of uninsured structure or
equipment loss, or 50 percent of farm road restoration cost.
Authority SL. 1999-463, s. 4.
SECTION .0400 - EMERGENCY CONSERVATION
PROGRAM COST SHARE BUY DOWN
.0401 ELIGIBILITY FOR ASSISTANCE
A producer who is eligible for assistance under the USDA-FSA
Emergency Conservation Program shall be eligible for the
cost share buy down assistance program.
14:23 NORTH CAROLINA REGISTER June 1, 2000 2033
PROPOSED RULES
Authority S.L 1999-463, s. 4.
,0402 APPLICATION PROCEDURES
Assistance under this program shall be based on information
provided to the Department by USDA-FSA from the producer's
application for assistance from USDA-FSA under the
Emergency Conservation Program. No additional application
shall be required.
Authority S.L. 1999-463, s. 4.
,0403 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of fiinds. assistance may be provided in
amounts not to exceed 1 8 percent ofthe total cost of the practice
approved by USDA-FSA. Assistance provided under this
Section may not be used to repair or rebuild a "lagoon." as
defined in G.S. 106-802.
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Written requests
for a public hearing on this proposed action must be directed to
Angela S. Waldorf, NC Department ofLabor, 4 West Edenton
St., Raleigh, N.C. 27601 on or before June 16, 2000.
Reason for Proposed Action: In theyears since the rules were
last revised, there have been many changes in the Department,
the Administrative Procedures Act and other laws affecting the
work ofthe Department. The purpose ofthis rule-making is to
update the rules, e.g. by repealing rules which amount to little
more than a restatement ofpersonnel law and regulations.
Comment Procedures: Written comments must be directed to
Angelas. Waldorf, N.C. Department ofLabor, 4 W. Edenton St.,
Raleigh, NC 27601. Comments will be received through July 3,
2000.
Authority SL. 1999-463, s. 4.
SECTION ,0500 - COMMODITY ASSOCIATIONS AND
COOPERATIVES ASSISTANCE
,0501 APPLICATIONS FOR ASSISTANCE
Commodity associations and cooperatives may submit an
application for assistance to the CommissionerofAgriculture on
a form provided by the Department.
Authority S.L. 1999-463. s. 4.
Fiscal Impact
State Local Sub. None
,0502 ELIGIBILITY FOR ASSISTANCE
A commodity association or cooperative shall
documentation of losses suffered due to Hurricane Floyd.
Authority S.L. 1999-463, s. 4.
.0503 LEVEL OF ASSISTANCE
Subject to availability of fiinds. the Commissioner of
Agriculture may provide assistance to commodity associations
or cooperatives on a 212 rata basis for losses suffered due to
Hurricane Floyd.
Authority S.L. 1999-463. s. 4.
TITLE 13 - DEPARTMENT OF LABOR
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Department of Labor intends to
amend rules cited as 13 NCAC IB .0101 - .0103; and repeal
rules cited as 13A NCAC lA .0101 - .0104, .0201; IB .0202 -
.0203, .0301 - .0307. .0404 -.0405. .0501 - .0502, .0602, .0605
-
.0608; IC.OIOI - .0103, .0106. .0201 - .0205. Notice ofRule-making
Proceedings was published in the Register on October
1, 1999.
Proposed Effective Date: March 15, 2001
CHAPTER 1 - DEPARTMENTAL RULES
SUBCHAPTER lA - GENERAL PROVISIONS AND
ORGANIZATION
SECTION .0100 - GENERAL PROVISIONS
.0101 NAME: ADDRESS: HOURS
The central office of the North Carolina Depai tmeiit of Labor is
provide located in Raleigh. The mailing address of the Jepai ti neiit is.
North Carolina Department of Labor, Raleigh, North Carolina.
The business hours of the department are from 8 a.m. to 5 p.m.
Monday through Friday, except official state holidays.
Authority G.S 95-1; 95-4; 143A-67.
.0102 PURPOSE
The depai-tment is responsible for promoting the safety, health
and general we ll-being of the industi- ial population of the state.
The depai tnient administers and enforces safety regulat ions,
wage and hour lavys, apprenticeship regulat ions, mine and quarry
regulations, el evator regulations, boil er and pressure vesse l
regulat ions, and regulations for private employment agencies.
In addition, the depailment offers aI^bitl^ation and mediation
seiTices for labor-management disputes through its conciliation
and al^bitration division.
Authority G.S 95-4; 95-11.
.0103 COMMISSIONER
The Comniissioner of Labor , who is el ected by the people for a
term of four years, is the executive and administrative head of
the department. Tlie commissioner supervises tlie administration
and enforcement of labor laws, regulations, and programs.
Authority G.S 95-2; 95-4; 143A-68.
2034 NORTH CAROLINA REGISTER June I, 2000 14:23
PROPOSED RULES
.0104
The-i
DEPUTY COMMISSIONER: ASSISTANT TO
THE COMMISSIONER
coinimssioner will appoint a deputy commissioner and an
assistant to tlie commissioner. The deputy commissioner will be
responsible—for—daily
—
administration—and
—
operation—of
depaitiiiental programs. Tlie assistant to tlie commissioner will
serve as a special assistant performing such duties and projects
as may be designated by the commissioner.
Authority G.S. 95-4.
SECTION .0200 - ORGANIZATION
.0201 DIVISIONS
The Depai tment of Labor is organized into nine major
divisions :
{\)—administration division,
(2)
—
apprenticeship and training division,
(3)
boiler and pressure vessel division,
(4) conciliation and arbitration division,
(5) elevator inspection division,
(6)
mine and quarry division,
(7)
occupational safety and health division,
(8) state inspections and services division,
(9)
statistics division.
Authority G.S. 74-24.19; 94-4; 95-4; 95-11; 95-12; 95-35;
95-36.3; 95-47.9; 95-69.12; 95-133; 143A-69.
SUBCHAPTER IB - RULE-MAKING AND
ADMINISTRATIVE HEARING PROCEDURES
SECTION .0100 - PETITIONS FOR RULES
proposed text in WordPerfect or MSWORD or other
word-processing program convertible to WordPerfect
or MSWORD. The requirement for a computer disk
shall be waived upon a showing of lack of access to
such a word-processing program;
(3) reasons for the proposal;
(4) the effect of the proposed amendment or rule
including: on existing mles or orders;
(a) The on the existing rules;
(h) The effect on local government, if any, as
described in OS^ 1506-21(0) and 150B-
21.4(b);
(c) Whether the proposed amendment or rule
would have a substantial economic impact as
defined m OS, 150B-21.4(bl) and an
estimation of such impact and how the estimate
was derived:
(d) The primary types of employees, businesses or
other entities on which there would be an
effect.
(5) any supporting data or other materials such as
examples and research; supporting—the
proposal;
(6) effect ofthe proposed rule on existing practices in the
area—
i
nvolved,—including—cost
—
factors; names,
telephone and facsimile numbers and address(es)
including e-mail address(es) of the petitioner(s). If
petitioner(s) represent organizations or entities, the
name(s) and addresses of the represented
organizations shall also be provided;
(7)
—
names of those most likely to be affected by the
proposed rule, with addresses if reasonably known;
(8)
name(s) and address(es) of petitioner(s).
.0101 PETITION FOR RULE-MAKING HEARINGS
Any person wishing to submit a petition requesting the adoption,
amendment or repeal of a rule by the Commissioner of Labor
shall address submit the a petition in writing to: Commissioner
of Labor. Rule-making Coordinator. N.C. Department of Labor
4 West Edenton Street, Raleigh, North Carolina zT^W. 27601-
1092. The exterior of the envelope or container of the petition
should shall clearly bear the notation: RULE-MAKING
PETITION. RE and then the subj ect al^ea or an indication of any
other area over which the Comnussioner of Labor may have
rule-making authori ty.
Authority G.S. 95-4(2).
.0102 CONTENTS OF PETITION
The petition should shall include the following information:
following:
(1) an indication of the subject area to which the petition
is directed; directed and, if known the number of the
North Carolina Administrative Code to which the new
proposed rule is proposed to be added;
(2) either a dl^aft of the proposed rule or a summaiy of its
contents; a printed copy of the text of the proposed
amendment or rule and a computer disk containing the
Authority G.S 95-4(2); 150B-16
.0103 DISPOSITION OF PETITIONS
(a) The rule-making coordinator designated under G.S. 150B-
2 1 or the commissioner's designate designee shall will determine
whetlier the public mterest will be served by granting review the
request. If the requirements of 13 NCAC IB .0102 regarding
the contents of the petition are not met, the petition shall not be
accepted and shall be returned to the petitioner(s) with the
deficiencies noted. Prior to making this determination, the
commissioner's designate may request additional Additional
information maybe requested from the petitioner(s).
petitioner(s); he may contact interested persons or persons likely
to be affected by the proposed mle and request comments; he
may use any other appropriate method for obtaining information
on which to base his deleiniination. He will consider all of the
contents of the pet i tion submitted plus any other information
obtained by the means described here in.
(b) Tlie designated officer will make a recommendation to the
commissioner for the institution of mle-making proceedings or
for the denial of the pet i tion, as the case may be . Complete
petition(s) and accompanying materials shall be reviewed to
determine whether the petition(s) will be granted or denied.
Review of a petition may include additional information
14:23 NORTH CAROLINA REGISTER June 1, 2000 2035
PROPOSED RULES
gathered by the department. Petitioner(s) shall be notified ofthe
decision of the department in accordance with G.S. 150B-20.
(c)
—
Within 30 days of submission of the petition, a final
decision will be rendered by tlie commissioner. If the decision
is to deny the pet i tion, the commissioner will notify the
petitioner in wri ting, stating the reasons therefor. If the decision
Authority G.S. 95-4; 150B-12.
.0303 RECEIPT OF REQUEST: SPECIFIC TIME
LIMITS
Upon receipt of notice of a person's desire to present his views
orally, the commissioner will acknowledge receipt ofthe request
to grant the petition, the commissioner, witliin 30 days of and inform the person of the imposition of any limitations
deemed necessary to the end of a full and effective public
proposed rule.
IS gr
submission, will initiate a rule-making proceeding by issuing a
rule-making notice, as provided in these rules.
Authority G.S. 95-4(2); 150B-16. Authority G.S. 95-4; 150B-12.
SECTION .0200 NOTICE OF RULE-MAKING
HEARINGS
.0202 NOTICE MAILING LIST
Any person or agency desiring to be placed on the mailing list
for Department of Labor rule-making noti ces, may file such
request in wri ting is name and mailing address to:
.0304 WRITTEN SUBMISSIONS
(a) Any person may file a written submission containing data,
comments or arguments, after publication of a rule-making
notice and within 1 days after the hearing, unless a different
period has been prescribed in the notice or granted upon request .
These written comments should be sent to the Commissioner of
Labor, 4 West Edenton Street , Raleigh, North Carolina 27601.
Commissioner of Labor, 4 West Edenton Street, Raleigh, North They should clearly state the rule(s) or proposed rul e(s) the
Carolina 27601 . Tlie letter of request should state those subj ect
areas within the authority of the commissioner for which he
wants notice. The commissioner may require reasonable postage
and stationery costs to be paid by persons receiving such notices.
comments are addressed to.
(b) Upon receipt ofwritten coiuments, acknowledgement will
be made with an assurance that the comments therein will be
considered fiilly by the Commissioner of Labor.
Authority G.S. 95-4; 150B-12. Authority G.S. 95-4; 150B-12.
.0203 ADDITIONAL INFORMATION
Persons desiring information in addition to that provided in an
individual rule-making notice may contact: The Commissioner
of Labor, 4 West Edenton Street, Raleigh, North Carolina
27601 . Any written communication should clearly indicate the
rul e-making proceeding which i s the subject of the inquiry.
Authority G.S 95-4; 150B-12.
SECTION .0300 - RULE-MAKING HEARINGS
.0301 REQUEST TO PARTICIPATE
Any person desiring to present oral data, vi ews, or ai^guments on
the proposed iiil e must, at least five days prior to the hearing, fil e
a notic e with the Depaitment of Labor.—Notice of de sire to
.0305 PRESIDING OFFICER: POWERS AND DUTIES
The presiding officer at the hearing shall have complete control
of the—proceedings,—
i
ncluding:—
e
xtensions—of any—time
requirements, recognition of speakers, time allotments for
presentations, the right to question speakers, direction of the
discussion, and management of the hearing.—Tlie presiding
officer, at all times, will take care that each person participating
in the hearing is given a fair opportunity to present views, data
and coirunents.
Authority G.S 95-4; 150B-12.
.0306 STATEMENT OF REASONS FOR DECISION
(a) Any interested person de siring a concise statement of the
principal reasons for and against the adoption of a rule by the
appear may be waived, or failul^e to give not ice may be excused, commissioner and the factors that led to overruling the
by the presiding officer, in his discretion. Any person permitted
to make an oral presentation is encouraged to submit a written
copy of the presentation to the commissioner or his designate
prior to or at the hearing.
Authority G.S 95-4; 150B-12.
.0302 CONTENTS OF REQUEST: GENERAL TIME
LIMITATIONS
A request to make an oral pres entation should contain a cl eai-
reference to the proposed rul e, a brief summaiy of the
individual's vi ews in respect tliereto, and how long the individual Authority G.S. 95-4; 150B-12.
desires to speak. Presentations shall be limited to 15 minute s
unl ess the commissioner pre sc r ibe s some other time limit.
considerations urged against i ts adoption, may submit a reque s t
to the Commissioner of Labor , 4 West Edenton Street , Raleigh,
North Carolina 27601.
(b) Forpuiposes of Subsection (a) of this Rule , an "interes ted
person" shall be any person(s) whose rights, dut i e s, or privil eges
might be affected by tlie adoption of the rul e in question, or any
group or organization of persons whose rights, dut ies or
privil ege s might be affected by the rule.
(c) TTie request must be made in writing and submitted prior
to adopt ion of the rul e or within 30 days thereafter.
.0307 RECORD OF PROCEEDINGS
A record of all mle-making proceedings will be maintained in
2036 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
the Commissioner of Labor's office for as long as the rule is in
e ffect, and for five years thereafter, following filing with the
Office ofAdministrative Hearings. This record will contain : the
original petition, the notice, all wri tten memoranda and
information submitted, and a record or summary of oral
presentation, ifany. Records ofrule-making proceedings will be
available for public inspection during the regular offic e hours of
the Depai liiient of Labor.
Authority G.S. 95-4; 150B-12.
SECTION .0400 - DECLARATORY RULINGS
.0401 SUBJECTS OF DECLARATORY RULINGS
Any person substantially affected by a statute administered or
rule promulgated by the Commissioner of Labor, may request a
declaratory ruling as to either the manner in which a statute or
rule applies to a given factual si tuation, if at all, or whether a
particular agency rule is valid.
Authority G.S. 95-4; 150B-17.
.0402 SUBMISSION OF REQUEST FOR RULING
All requests for declaratory rulings shall be written and mailed
to the Commissioner of Labor, 4 West Edenton Street , Raleigli,
Nortli Carolina 27601 . The container of the request should bear
the notation : REQUEST FOR DECLARATORY RULING.
The request must include the following infonnat ion:
(f)
—
name and address of peti tioner;
(2) statute or rule to which peti tion relates;
(3)—
c
onci se statement ofthe manner in which petitioner is
aggrieved by the rule of statute or its potential
application to him;
(4)
a statement of whether an oral hearing is desired, and
if so, the reason therefor.
Authority G.S. 95-4; 150B-17.
.0403 DISPOSITION OF REQUESTS
(a) Wlien the Commissioner of Labor deems i t appropriate to
issue a declai-atoiy ruling he shall issue such declaratoiy mling
within GO days of receipt of the pet i tion.
(b) A declai-atory ruling proceeding may consist of wr i tten
submissions, an oral hearing, or other proc edure as may be
appropriate in the circumstances of the particular request.
(c) Wlienever the commissioner believes "for good cause"
that the issuance of a declaratory ruling is undesirable, he may
refuse to issue such ruling. Wlien good cause is deemed to exist,
he will noti fy the petitioner of his decision in writing, stating the
reasons for the denial of the declaratory ruling.
(d) For purposes of Subpart (c) of this Rule, the
Commissioner of Labor ordinarily refuses to issue a declaratoiy
ruling:
{¥) unless the petit ioner shows that the circumstances are
so changed since the adoption of the rul e that such a
ruling would be wartanted;
t2)
unless the peti tioner shows that the agency did not
give to the factors specifi ed in the request for a
declaratory ruling a full consideration at the time the
rul e was issued;
(3)
—
where there has been a similar controlling factual
detei'iiiinat ion in a contested case, or where the factual
context being raised for a declaratory ruling was
specifically considered upon the adoption of the rule
or directive being questioned, as evidenced by the
rule-making record;
where tlie subject matter of the request is involved in
pending litigation in any state or federal court in
North Carolina.
(4)-
Authority G.S. 95-4; 1508-17.
.0404 RECORD OF DECISION
A record of all declaratory rule-making proceedings will be
maintained in tlie Depai tii ient of Labor for as long as the ruling
is in effect and for five years thereafter.—This record will
contain : the pet i tion, the notice, all written submissions filed in
the request, whether filed by the petitioner or any other persons,
and a record or summary of oral presentations, if any. Records
of rule-making proceedings will be available for public
inspection during the regular office hours of the Depaitment of
Labor.
Authority G.S 95-4; 150B-17.
.0405 DEFINITION
For purposes of Rule .0404 of this Section, a declaratory ruling
shall be deemed to be "
in effect
"
: until the statute or rule
interpreted by the declaratory ruling is amended, altered or
repealed; until the Depaitment of Labor changes the declaratory
ruling prospectively for good reasons; or until any court sets
aside the ruling in litigation between the Depaitment of Labor
and the party requesting the rule; or unt il any court of the
Appellate Division ofthe General Court ofJustice shall construe
the statute or rule which is the subject of the declaratory ruling
in a mamier plainly irreconc ilable with the declaratory ruling.
Authority G.S 95-4; 150B-17.
SECTION .0500 - ADMINISTRATIVE HEARING
PROCEDURES
.0501 RIGHT TO HEARING
Wlien the Commissioner of Labor, by his official action, acts or
proposes to act in a manner which will affect the rights, duties,
privil eges or a license of a specific, identifiable person or
persons, those persons have a right to an administrative hearing.
Wlien the commissioner proposes to act in such manner, he shall
give to any such person or persons notic e of their right to a
hearing by mailing by c ertified mail to such person at his last
known address a notice of the proposed action and a notice of a
right to a hearing. Such person or persons may assert his or their
right to a hearing by mailing to the commissioner by certifi ed
mail a request for a hearing as provided in Rul e .0502(c) of this
Section, except that attempts at informal resolution are not
required, and a heari ng will be gl^anted provided that the
14:23 NORTH CAROLINA REGISTER June 1, 2000 2037
PROPOSED RULES
container of the request beal^s a postmark dated prior to the date
on which the commissioner proposed to act .
Authority G.S. 95-4; 150B-23.
.0502 PETITION FOR HEARING
(a)
—
Any time an individual bel ieves his rights, dutie s or
privileges—have—been
—
affected—by—the
—
commissioner's
administrative action, but has not received notice of a right to an Authority G.S. 95-4; 150B-36.
administrative hearing, that individual may Fil e a fonnal request
for a hearing.
fb)
Before an individual may file a request he must First
exhaust all reasonable efforts to resolve the issue informally with
the commissioner's ofFice. Tliis requirement will be satisFied by
decision of the matter by the Deputy Commissioner of Labor.
(c) Subsequent to such informal action, if still dissatisFied, tlie
individual should File a petition for a hearing witli the OfFice of
Administrat ive Hearings in accordance with Article 3 ofChapter
1 50B of the General Statutes.
Authority G.S. 95-4(2).
.0607 FINAL DECISIONS IN ADMEVISTRATFVE
HEARINGS
The Commissioner of Labor will issue the Fmal decision in all
contested cases. His decision i s the prerequisite "Final agency
decision" for the right to judicial review.
.0608 APPLICABILITY
All rules of procedure for adininistrative hearings as outlined in
Sections .0500 and .0600 of diis Subchapter are applicable to all
divisions of the depailment except the division of occupational
health—and—safety
—
administration. The—nries
—
governing
administrative hearings in that division are set forth in
Subchapter 7D of Title 13 of the North Carolina Administrative
tooe:
Authority G.S. 95-4.
SECTION .0600 - ADMINISTRATIVE HEARINGS:
DECISIONS: RELATED RIGHTS AND
PROCEDURES
.0602 SIMPLIFICATION OF ISSUES
Except as prohibited by statute, the parties to a contested case,
specifically including the commissioner, may agree in advance
to simplify the hearing by: decreasing the number of the issues
to be contested at the hearing, accepting the validity of certain
proposed evidence, accepting the Findings in some other case
with relevance to the case at hand, or agreeing to such other
matters as may expedite the hearing.
Authority G.S. 95-4; 150B-33.
.0605 REQUEST FOR DEPARTMENT RECORDS
(a) Any paity may request to examine any ident iFiabl e records
of the department which are relevant to the material facts of a
contested case. Such requests shall be made in writing to the
director of the appropriate division and shall specify, as Authority G.S. 95-4(2).
prec isely as possibl e , the records being sought , and the reasons
therefor.
Authority G.S. 1508-2(2); 150B-23(a).
SUBCHAPTER IC - PERSONNEL RULES
SECTION .0100 - AFFIRMATIVE ACTION POLICY
.0101 GENERAL PROVISIONS
It is the policy of this depai tineiil to provide equal employment
opportunities to all applicants for state employment and to
provide for training, compensation, promotion, and all other
atu ibutes of employment to employee s without regard to race,
religion, national origin, sex, age or physical handicap, except
where sex, age or physical requirements are essential, bona fide,
occupational qualifications. This depai tmeiil's commitment to
equal career opportunity requires a continuing progl^am of
affirmative action in order to assure that all personnel policies
and practices relevant to total employment will guarantee equal
opportunities for all persons of the state. Through planning and
instruction positive steps will be taken to implement an
affinnat ive act ion program designed to meet the needs of the
(b) After receiving the request, the director will allow the
party to inspect the requested records and may, after charging
reasonable fees, supply the party with copies of the requested
records.
(c) Wliere the request concerns records related so
internal procedures of the depailment or which are exempt from
disclosureby law, the director may refuse tlie request, stating his
reasons therefor in writ ing.
Authority G.S 95-4(2); 150B-28(b).
.0606 ASSISTANCE OF COUNSEL
A party may, but under no ciixumstances is required to, have the
assistance of counsel at the hearing.
.0102 ASSIGNMENT OF RESPONSIBILITY
The personne l officer for the depaitinent is designated as the
equal employment opportuniti e s (EEC) officer.—Tlie EEC
officer is responsible for the development and implementation
uf die Jepai liiient's afFu-mat ive action progi'am. Tlie EEC officer
l e ly to the is also responsible for the prepai-ation of all reports and surveys
fmnt from concerning the employment of minorit i es, women and the
handicapped as may be required by the OfFice of State Personnel
or other governmental agencies.
Authority G.S 95-4(2).
.0103 JOB STRUCTURING
Positions in the depailment are revi ewed by die position
management division in tlie OfFice of State Personne l, as to job
2038 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
content, experience and educational requirements to insure that channels.—These sources include colleges and universi ties,
unnecessaiy restrictions do not bar minori ty, female or minority organizations, women's organizations, trade groups,
handicapped applicants from securing employinent or being Office—of—State
—
Personnel,—and
—
Employment
—
Security
eligible for promotions.
Authority G.S. 95-4(2).
.0106 DISCRIMINATION COMPLAINTS
(a)
—
Applicants or employees that feel they have been
discriminated against in recruiting, hiring, promotion, training,
or salary administration may appeal directly to the State
Personnel Commission for redress of grievances. —(b) Any person wishing to file a complaint should contact the
Employee Relations Division, Office of State Personnel,
Administration—Building,—Raleigh,—North
—
Carolina,
919/829-7112.
Authority G.S. 95-4(2).
SECTION .0200 - EMPLOYMENT POLICY
.0201 GENERAL PROVISIONS
I t is the policy of tlie North Carolina Department of Labor to
provide equal employment opportunities to all applicants for
state employment without regard to race, religion, national
origin, sex, age or physical handicap. Tlierefore, the following
employment policy is hereby established in accordance witli tlie
depai trnent's policy of afTumati v e action.
Authority G.S. 95-4(2).
.0202 APPLICATION PROCEDURE
(a)
—
Applications for employment with the Depai
"tment of
Labor will be directed to the personnel officer.—Any person
wishing to make referrals should instruct the individual to
complete a state application form (PD 107) and forward to the
personnel officer. Application forms will be available at the
receptionist's desk and from the personnel office.
(b) Walk-in applicants should not be referred to the personnel
officer
—
They may be given an application form by the
recept ionist which should be completed and forwarded to the
personne l office.
(c) All applications will be maintained on fil e for a period of
two years.
(d) If appropriate vacancies exist , the personnel officer will
contact all qualified applicants to schedule ini tial intei
-views.
The merit system will be explained for tliose jobs which requii'e
te sting, and applicants will be instiiicted on th e proper te s t, test
procedures, and schedules.
(e)-HH (e) I t no appropriate vacancies exist , the personnel officer
will acknowledge receipt of all applications by letter and file
applications for futui'e consideration.
Authority G.S 95-4(2).
.0203 JOB VACANCY ANNOUNCEMENTS
(a) Wlien a job vacancy occurs, the personne l officer will
publicly announce the job vacancy through noniial recruitineiit
Commission. All appl ications on file will also be reviewed and
qualified applicants contacted to schedule interviews.—For
positions—under—the
—
merit system,—competitive—services
procedures will be followed as required by the Office of State
Personnel.
(b)—Job vacancy announcements will also be posted on
depai Lniental bulletin boards, and any employee wishing to apply
for the vacant position may do so by filing an application with
the personnel office not later than seven calendar days following
the date of the announcement .—Division directors and tlie
persomiel officer will consider all qualified employees for
promotional opportunities within the depaiCiiienl.
Authority G.S. 95-4(2).
.0204 INTERVIEW PROCEDURES
(a) The first interview for an applicant with the personnel
officer will be general in nature, concerning the applicant's
education, experience, apti tude, interest and general job
information. Information concerning benefits—of state
employment and the work of the Depaitment of Labor will be
described.
(b) Following initial interviews, qualified applicants will be
recommmded—to—the
—
appropriate—division—director—for
consideration.—I t will be the responsibility of the director to
schedule interviews with all applicants recommended at his
convenience .
(c) The second interview will be with the division director,
assistant director or immediate supervisor. A thorough review
of the applicant's qualifications should be made and references
checked. Information regarding the division's work and the job
available should be discussed with each applicant .
Authority G.S. 95-4(2).
.0205 HIRING PROCEDURES
(a)
—
Tlie division diJ^ector shall recommend a qualified
applicant for employment fi^om those referred by the personnel
offic er and not ify the personnel office of his recommendation
using the form DOL-PD-1 . Tliis form is used to re fer applicants
to division directors and include s the applicant's name, position
applied for, interview date , and interviewing official. Tlie form
also provide s a section to record the disposi tion o f the applicant
(i.e. if he qualifi ed for the position, if he does not qualify, if the
division wishe s to offer employment, or if the division does not
wish to offer employment).—Tlie intei
'viewing official must
record a specific reason if he does not wish to offer employment
to a qualifi ed applicant .
(b) With the approval of the deputy commissioner, a l ette r of
intent to the applicant will then be sent by the personnel officer
outlining the position class offered, starting salaiy, salary grade
and step, status of posit ion, and effective date of employment.
(c)
—
Tlie appli cant should respond by letter, accepting or
refusing the position.
(d) All applicants not s elected for employment will rec e ive
14:23 NORTH CAROLINA REGISTER June 1, 2000 2039
PROPOSED RULES
written notice fromtlie personnel offic er. Their applications will
be filed for future consideration when vacancies occur.
Authority G.S. 95-4(2).
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the N.C. Department ofLabor intends to amend the
rule cited as 13 NCAC 15 .0201. Notice of Rule-making
Proceedings waspublished in the Register on January 14, 2000.
Proposed Effective Date: March 15, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Written requests
for Public Hearing must be directed to Angela S. Waldorf,
General Counsel, N. C. Department of Labor Legal Affairs
Division, 4 W. Edenton St., Raleigh, NC 27601 on or before
June 16, 2000.
Reason for Proposed Action: Adoption of this amendment
makes permanent the Temporary Rule adopted December 21,
1999. The rule adopts and incorporates by reference the new
American National Standard Safety Codefor Platform Lifts and
Stairway Chairlifts, A18. 1-1999, which became effective
January 1, 2000. Additionally, the rule adopts a minor change
to the standards on inclined stairway chairlifts and inclined and
vertical wheelchair lifts. The change adds flexibility by
permitting the use ofan alternative signaling device. In addition
to use of a bell with stop switch, the use of a means of 2-way
communication will also he permitted.
Comment Procedures: All interested parties are invited to
submit written comments to Angela S. Waldorf at N.C.
Department of Labor, 4 W. Edenton St., Raleigh, NC 27601.
Comments will be received through July 3, 2000.
Fiscal Impact
State Local Sub. None
CHAPTER 15 - ELEVATOR AND AMUSEMENT
DEVICE DIVISION
SECTION .0200 - CODES AND STANDARDS
.0201 ELEVATOR SAFETY CODE
(a) The design, construction, installation, alteration, repair,
replacement, inspection, maintenance and operation of all new
installations of:
(1) Elevators, dumbwaiters, escalators, and moving
walks, inclined stairway chairlifts, and inclin ed and
vertical wheelchair lifts shall conform to these Rules
and the American National Standard Safety Code for
Elevators and Escalators, A 17. 1-1 990 which is
incorporated by reference subject to the modifications
provided in Paragraph (b) of this Rule. This
incorporation includes subsequent amendments and
editions of the Code.
(2) The design, construction, installation, alteration,
repair, replacement, inspection, maintenance and
operation of all new installations of inclined stairway
chairlifts. and inclined and vertical wheelchair lifts
shall conform to these Rules and the American
National Standard Safetv Code for Platform Lifts and
Stairway Chairlifts. A 1 8. 1 - 1 999 which is incorporated
by reference subject to the modifications provided in
Paragraph (h) of this Rule. This incorporation
includes subsequent amendments and editions of this
Code.
(b) The provisions of the American National Standard Safety
Code for Elevators and Escalators, Al 7.1 shall be subject to the
following modifications:
(1) Rule 100.1c(2) - Observations Elevators Not Fully
Enclosed. Change the rule to read as follows:
For observation elevators which are not fully
enclosed, protection at landings shall be provided as
follows:
(A) An enclosure shall be provided which shall
extend a minimum often feet above the floor.
(B) The enclosure shall be constructed of
unperforated material.
(C) Enclosures shall be located in the general line
of the hoistway. Horizontal clearance shall be
the same as stated in Section 108.
(2) Rule 111.10 - Access to Hoistways for Emergency
Purposes. In the first sentence change the word
"may" to "shall."
(3) Rule 204.2d - Side Emergency Exits. Side
Emergency exits shall not be permitted in elevator
cars.
(c) The rules of this Chapter shall control when any conflict
between these rules and the ANSI Code exists.
(d) Copies of the American National Standard Safety Code
for Elevators and Escalators are available for public inspection
in the office of the Division, and may be obtained from the
American Society ofMechanical Engineers, United Engineering
Center, 345 East 47* Street, New York, New York 10017. The
cost is ninety-six dollars ($96.00) per copy.
Authority G.S. 95-110.5.
TITLE 21 - OCCUPATIONAL LICENSING BOARDS
CHAPTER 4 - COMMISSION FOR AUCTIONEERS
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Auctioneer Licensing Board
intends to adopt rules cited as 21 NCAC 4B .0801-.0819 and
amend rules cited as 21 NCAC 4B .0103, .0201 -.0202, .0302,
.0401 -.0405, .0501 -.0502, .0601 -.0602, .0605. Notice ofRule-making
Proceedings was published in the Register on January
4, 2000.
2040 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
Proposed Effective Date: April 1, 2001
A Public Hearing will be conducted at 3:30 p.m. on June 17,
2000 at the Meadowbrook Inn, Blowing Rock, Norih Carolina.
Reason for Proposed Action: The Auctioneer Licensing Board
proposes this action that will address both the Legislation
enacted in the last General Assembly session and needed
technical changes. Changes that are a direct result ofthe new
Legislation include: the requirements offingerprint cards and
consentforms for background checks, the increase offees to
offset the cost of continuing education programs, the
requirements of continuing education, and the ability of the
Board to assess a civil penaltyfor rule violations. Some ofthe
changes that are ofa technical nature include: broadening the
definition of auctioneering, defining principal(s), clarifying
applicant's requirements, requiring an auctionfirm applicant to
be a principal within thefirm, insertingfingerprint background
checkfees, allowing an apprentice auctioneer to be sponsored
by more than one Board approved licensed auctioneer,
distinguishing between applications and investigations,
requiring a board approved application form for schools of
auctioneering, requiring a minimum of 2 hours instruction in
North Carolina AuctioneerLaw andRules at accredited schools
ofauctioneering, and the addition ofan advertising violation.
Comment Procedures: Interestedpersons maypresent oral or
written comments at the Rule-Making Hearing. In addition, the
record will be open for receipt ofwritten commentsfrom June
1, 2000 to July 1 7, 2000. Written comments notpresented at the
hearing should be directed to Robert Hamilton. The proposed
rules are available for public inspection and copies may be
obtained at the Board's offices at 1001 Navaho Dr., Suite 105,
Raleigh, NC 27609,
Fiscal Impact
State Local Sub. None
• 21 NCAC 04B .0103, .0201 -
.0202, .0302, .0401 -.0404,
.0405, .0501:0502, .0601 -
.0602, .0605, .0801 -.0819.
21 NCAC 04B. 0404
SUBCHAPTER 4B - AUCTIONEER LICENSING
BOARD
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
.0103 DEFINITIONS
Whenever used in this Chapter:
(1) "Auctioneers Law" or "licensing law" shall refer to
G.S. 85B;
(2) "Auctioneering" or "conduct of auction" or "conduct
of business" shall mean, in addition to the actual
calling of bids, any of the following:
(a) contracting for an auction or auctions,
(3)
(4)
(51
(b) accepting consignments of items for sale at
auction,
(c) advertising an auction,
(d) offering items for sale at auction,
(e) accepting payment and disbiu^sing monies for
items sold at auction, or
(f) otherwise soliciting, arranging, sponsoring, or
managing an auction or auctions or holding
oneself out as an auctioneer;
"Board" shall mean the North Carolina Auctioneers
Commission;
"Minimum Bid" as used in auctions shall mean
minimum opening btds: bids;
"PrincipaKsV as it pertains to auction firms shall
mean director(s). ofFicer(s) and/or paTtner(s).
Authority G.S. 85B-1; 85B-3(f).
SECTION .0200 - APPLICATION FOR LICENSE
.0201 APPLICATION FORMS
(a) Auctioneer. Each applicant for an auctioneer license shall
complete an application form provided by the Board. This form
shall be submitted to the Executive Director and shall be
accompanied by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior coim (or
equivalent official in other states) in each county
where the applicant has resided and maintained a
business within the immediate preceding 60 months
(five years);
(3) the completed fingerprint cards provided by the Board
and the form signed bv the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4} a copy ofthe applicant's high school diploma or proof
of equivalency;
(9)(5} the proper fees, as required by 21 NCAC 4B .0202;
W(6) documentation of required auctioneer schooling or
auctioneer experience, as follows:
(A) Applicants who base their application upon
their successful completion of an approved
school of auctioneering shall submit a
photostatic copy of their diploma or certificate
ofsuccessful completion. Applicants who base
their
—
application—upon—their
—
successful
completion—of—an
—
approved—school—of
auct i o n eering—shall—have
—
successfully
completed this school within the previous five
years, or if completed more than five years
before, the applicant An applicant shall have
successfiilly completed this school within the
five years preceding the date of application or
ifthe applicant has successfiilly completed this
school more than the five years preceding the
date of their application, shall submit
14:23 NORTH CAROLINA REGISTER June 1, 2000 2041
PROPOSED RULES
documentation verifying the applicant's active
lawfiil participation in auctions within the two
years preceding the date of application. The
above referenced participation in auctions is
defined as "Auctioneering" as set forth in
Subparagraph .0103(2) of this Subchapter.
(B) Applicants who base their application upon
their successful completion of an
apprenticeship shall submit a log which was
maintained and completed during the
apprenticeship period which details the exact
hours and dates on which they obtained
apprenticeship experience, with each entry
being verified and signed by their supervising
auctioneer. A minimum of 100 hours of
experience during the apprenticeship two-year
period shall be obtained. Not less than 25 of
the total hours accumulated must be
attributable to bid calling and not less than 50
hours shall be attributable to working as a ring
person, drafting and negotiating contracts,
appraising merchandise, advertising, clerking
and cashiering, with not less than five hours of
accumulated experience documented for each
category. An apprentice who applies for an
auctioneer license under this Part shall submit
his application and supporting documentation
and obtain a passing score on the auctioneer
exam prior to the expiration of his apprentice
auctioneer license, license; and
(5)(7} Non-resident applicants shall also submit a properly
completed "Designation of Agent for Service of
Process Form" with notarized signature and notarial
seal affixed.
(b) Non-Resident Reciprocal Auctioneer. Each non-resident
applicant for auctioneer license, who applies for a North
Carolina license pursuant to G.S. 85B-5 shall complete an
application form provided by the Board. This form shall be
submitted to the Executive Director and shall be accompanied
by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where the applicant
has resided and maintained a business within the
immediate preceding 60 months (five years);
(3) the completed fingerprint cards provided by the Board
and the form signed bv the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4) a copy of the applicant's high school diploma or proof
of equivalency;
(9)15] the proper fees, as required by 21 NCAC 4B .0202;
ffi(6) a statement ofgood standing from the licensing board
or Commission of each and every jurisdiction where
the applicant holds an auctioneer, apprentice
auctioneer or auction firm license; and
(5)(7} a properly completed "Designation of Agent for
Service ofProcess Form" with notarized signature and
notarial seal affixed.
(c) Apprentice Auctioneer. Each applicant for an apprentice
auctioneer license shall complete an application form provided
by the Board. This form shall be submitted to the Executive
Director and shall be accompanied by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where the applicant
has resided and maintained a business within the
immediate preceding 60 months (five years);
(3) the completed fingerprint cards provided by the Board
and the form signed by the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4) a copy ofthe applicant's high school diploma or proof
of equivalency;
(3)(51 the proper fees, as required by 2 1 NCAC 4B .0202;
(4)(6} the signature, as designated on the applicant form, of
the licensed auctioneer who will be supervising the
apprentice auctioneer;
(5)(7} a written statement of the proposed supervisor's
background and experience in the auction profession
to include the number and types of auctions conducted
or participated in annually; and
(6)(8} if applicant is a non-resident, a properly completed
"Designation of Agent for Service of Process Form"
with notarized signature and notarial seal affixed.
(d) Auction Firms. An applicant for an auction firm shall be
a principal within the firm. Each applicant for an auction firm
license shall complete an application form provided by the
Board. This form shall be submitted to the Executive Director
and shall be accompanied by:
(1) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where any
principal and designated person of the auction firm
has resided and maintained a business within the
immediate preceding 60 months (five years);
(2) the completed fi ngerprint cards provided by the Board
and the form signed by the applicant, any principal
and designated person of the auction fym each of the
principal's and designated person's ofthe auction firm
completed fingerprint cards provided by the Board
and the form signed by each consenting to the check
of the criminal history and to the use of fingerprints
and other identifying information;
(3) a copy of each principal's and designated person's
high school diploma or proof of equivalency;
(2)(41 the proper fees, as required by 2 1 NCAC 4B .0202;
(3)(5j a certified copy of any applicable Articles of
Incorporation, Partnership Agreement, and Assumed
Name Certificate;
(4)(6} a statement ofgood standing from the licensing board
or Commission of each jurisdiction where the
2042 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
applicant firm and any principal and designated
person of such firm holds an auctioneer license ofany
type; and
(5X2} if applicant firm is a non-resident, a properly
completed "Designation of Agent for Service of
Process Form" (one each for the auction firm and for
each principal and designated person ofthe firm) with
notarized signature and notarial seal affixed and, if a
corporation, the corporate seal and corporate
secretary's signature affixed.
Authority G.S. 85B-3(f): 85B-4; 85B-4(d); 858-5.
.0202 FILING AND FEES
(a) Properly completed applications must be filed (received,
not postmarked) in the Board office at least seven days prior to
an established Board meeting date, or in the case of an
application for auctioneer examination, at least 10 days prior to
a scheduled examination and must be accompanied by all
required documents.
(b) License fees are as follows:
(1) New auctioneer license for an applicant who did not
serve an apprenticeship $175.00$250.00
This includes a $100.00 $150.00 annual license fee;
$50.0 $50.00 application fee; and
$25.00 $50.00 examination fee.
(2) New auctioneer license for an
apprentice auctioneer $125.00$200.00
This includes a $100.00 $150.00 annual license fee;
and $25 .00 $50.00 examination fee.
(3) Renewal of auctioneer license $^0:00^15000
(4) New apprentice auctioneer license $tOO;:ee$ 150.00
This includes a $50.00 $100.00 hcense fee and a
$50.00 $50.00 application fee.
(5) Renewal of apprentice auctioneer
license $50:00$ 100.00
(6) New auction firm license (no
examination) $i5O:Oe$200.00
This includes a $100.00 $150.00 annual license fee;
and $50.00 $50.00 application fee.
(7) New auction firm license
(examination) $175.00$250.00
This includes a $100.00 $150.00 annual license fee;
$50.00 $50.00 application fee; and $25.00 $50.00
examination fee.
(8) Renewal ofan auction fmn license $100.00$150.00
(9) Application and processing fee for conversion ofnon-resident
reciprocal license to in state
license $25:0e$50.00
( 1 0) Reinstatement of lapsed license fee or
late fee $25.00$50.00
(in Resident fingerprint card background
check fee $14.00
Applicants who have been continuous residents of
North Carolina for the five vears preceding
the date of application shall only be required to have
a State background check.
(12) Non-resident fingerprint card background
check fee $38.00
Applicants who have not been continuous residents of
North Carolina for the five vears preceding
the date of application shall be required to have both
a State and Federal background check.
(c) The renewal fee for a non-resident reciprocal licensee
under G.S. 85B-5 shall be calculated in the same manner as the
initial application fee pursuant to G.S. 85B-6.
(c)(d) Fees may be paid in the form of a cashier's check,
certified check or money order made payable to the North
Carolina Auctioneer Licensing Board. Checks drawn on escrow
or trust accounts shall not be accepted. Personal checks may be
accepted for payment of renewal fees.
Authority G.S. 85B-4.1; 85B-6.
SECTION .0300 - EXAMINATIONS
.0302 RE-EXAMINATION/REFUND OF FEES
If the applicant does not appear at the initial examination for
which he has been scheduled or fails to pass such examination,
he will be re-scheduled for the next scheduled examination. If
the applicant again does not appear or fails to pass this
examination, a refund of the annual auctioneer or apprentice
license fee will be made and a refund of any Auctioneer
Recovery Fund contribution will be made. No refund of the
application—or
—
examination application, examination or
fingerprint and criminal history check fee is allowed. A
complete new application and proper fees are required if the
person wishes to reapply.
Authority G.S. 85B-4; 85B-6.
SECTION .0400 - LICENSING
.0401 LICENSE NUMBER: DISPLAY OF LICENSE
AND POCKET CARD
(a) When being licensed each individual or firm shall be
issued a license number which remains solely his. Should that
number be retired for any reason (such as death, failure to
continue in the auction business, failure to renew his license, or
any other reason) that number will not be reissued back to the
individual or the firm or to any other individual or firm.
(b) A pocket card will be issued by the Executive Director
giving the auctioneer, apprentice auctioneer or auction firm's
name, license number and date of expiration. The pocket card
must be carried by the licensee, and in the case of auction firms
the designated person(s), at all times when auctioneering
activities are being conducted and shall be available for
inspection by the Executive Director or designated agent of the
Board. An auction firm shall display its license in a prominent
place upon its premises, so as to be visible for inspection by
patrons of the firm.
Authority G.S 85B-3(f); 85B-4.
.0402 LICENSE RENEWAL
(a) Any licensee desiring the renewal of a license which is in
14:23 NORTH CAROLINA REGISTER June 1, 2000 2043
PROPOSED RULES
good standing shall apply for same and shall submit the required
fees and such records or documentation requested by the
Executive Director to verify the licensee's compliance with G.S.
85B and the rules promulgated in this Chapter. All licenses
expire on June 30 each year.
(b) Applications for renewal of licenses will only be
processed by the Board upon receipt of the required fee and any
records, documents, or information, requested pursuant to
Paragraph (a) of this Rule.
(c) Any person or entity who engages in any auctioneering
activities governed by the auctioneers law while the license is
lapsed will be subject to the penalties presc ribed in the law
pursuant to G.S. 85B-9.
(d) Licenses lapsed or suspended in excess of 24 months shall
not be renewable. Persons or fums whose license has been
lapsed or suspended in excess of 24 months and who desire to be
licensed shall apply for a new license and shall meet all the
requirements then existing. Persons or firms whose license has
been lapsed or suspended in excess of 24 months and who desire
to be licensed are exempt from the auctioneer school or the
apprenticeship requirements should the continuing education
requirements be met for all lapsed, suspended and/or inactive
years.
Authority G.S. 85B-3(f); 85B-4.
.0403 APPRENTICE AUCTIONEER LICENSE
(a) An apprentice auctioneer's license is valid only while he
is associated with and supervised by a licensed auctioneer
assigned by the Board. In order to be assigned by the Board as
a supervisor, the Board must receive a written notice, signed by
the prospective supervisor and the apprentice, requesting that the
licensed auctioneer be assigned as a supervisor for the
apprentice. Upon receipt of such a request, the Board shall
evaluate the requested assigimient and such requested
assignment may be denied by the Board if the prospective
supervisor fails to possess a minimum of five years of active
experience in the auctioneering profession or an equivalent
combination oftraining and experience or has committed any act
which constitutes grounds for license suspension or revocation
under the rules of this Subchapter or under G.S. 85B. Upon
termination of the association between the supervisor and the
apprentice, the supervisor shall immediately notify the Board in
writing, showing the date and cause of termination.
(b) The supervising auctioneer shall be on the premises of the
sale location and supervise the apprentice auctioneer at any and
all times that an apprentice auctioneer is engaged in bid calling.
Additionally, the supervising auctioneer shall supervise the
apprentice on a regular basis and ensure that the apprentice
auctioneer conforms with the auctioneer law and Rules adopted
by the Board.
(c) Any licensed auctioneer who undertakes the sponsorship
of an apprentice auctioneer shall ensure that the apprentice
receives training, supervision, and guidance in the following:
(1) A practical and working knowledge of the auction
business including fundamentals of auctioneering,
contract drafting, bid calling, basic mathematical
computations, advertising, and settlement statements;
(2) The provisions of the licensing law;
(3) The Rules of the Board; and
(4) The preparation and maintenance of written
agreements, record books, and other sales records as
required by law.
(d) Apprentices are prohibited from conducting or contracting
to conduct any auction without the prior express written consent
of the sponsor. No sponsor shall authorize an apprentice to
conduct or contract to conduct an auction, to act as principal
auctioneer or handle any funds related to an auction unless the
sponsor has determined that the apprentice has received adequate
training to do so. An apprentice auctioneer may work under
only one licens ed auctioneer at any given time. An apprentice
auctioneer mav work under more than one Board approved
licensed auctioneer at any given time.
(e) The sponsor shall ensure that the apprentice complies with
all of the laws and Rules as they apply to any auction related
transaction approved by the sponsor.
(f) An apprentice auctioneer shall notify the Board, in
writing, immediately upon termination ofhis association with his
supervising auctioneer, at which time his license shall be
immediately held in an inactive invalid status. If an apprentice
auctioneer's supervising auctioneer's license has been suspended,
revoked, or placed on probation the apprentice auctioneer's
license shall be immediately held in an inactive invalid status.
Once in an inactive invalid status, an apprentice auctioneer shall
not conduct or contract to conduct any auction. An apprentice
auctioneer may only remain in this inactive status for a
maximum of 90 days.—If tlie apprent ice auctioneer retains
another sponsor approved by the Board within this 90 day
period, the apprentice auctioneer's license shall not be deemed
to have lapsed under 21 NCAC 4B .0402(d). If an apprentice's
license is invalid greater than 90 days due to a lack of an
approved sponsor, the apprentice upon securing an approved
sponsor shall be required to submit a late fee set forth in
Subparagraph .0202(b)(10).
Authority G.S. 85B-3(f); 85B-4.
.0404 GROUNDS FOR LICENSE DENIAL OR
DISCIPLINE
(a) The Board may assess a civil penalty in accordance with
G.S. 85B-3.1(b") or deny, suspend, or revoke a license, or issue
a letter of reprimand to a licensee, upon any of the following
grounds:
(1) violation of any provision of G.S. 85B;
(2) violation of any provision of the Rules under 21
NCAC, Subchapter 4B;
(3) a check given to the Board in payment of required
fees which is returned unpaid;
(4) allowing an unlicensed person (auctioneer) to call a
bid at a sale;
(5) calling a bid auctioneering at an unlicensed auction
firm sale;
(6) failure to properly, completely and fully complete an
application or making any false statement or giving
any false information in connection with an
application for a license, renewal or reinstatement of
2044 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
a license or any investigation by the Board or the
Board's designee ;
(A) failure to properly, completely cooperate with
any investigation: or
(B) for making any false statement or giving any
false information in connection with any
investigation by the Board or the Board's
designee;
(7) been adjudicated mentally incompetent by a court;
(8) committed a crime the circumstances of which
substantially relate to the auctioneering profession;
(9) violated any federal or state statute or rule which
relates to the auctioneering profession;
(10) practiced the profession for which the holder has a
license while the holder's ability to practice was
impaired by alcohol or other drugs or physical or
mental disability or disease;
(11) been incompetent in practice. A licensee has been
incompetent in practice if the licensee engaged in
conduct which evidences a lack of ability, fitness or
knowledge to apply principles or skills of the
auctioneering profession;
(12) engaged in unprofessional conduct. In this Paragraph
"unprofessional conduct" means the violation of any
standard of professional behavior which through
professional experience has become established in the
auctioneering profession;
(13) obtained or attempted to obtain compensation by
fraud or deceit;
( 1 4) violated any order ofthe Auctioneer Licensing Board;
(15) failure to possess truth, honesty and integrity
sufficient to be entitled to the high regard and
confidence of the public; or
(16) failure to properly make the disclosures required by
21NCAC4B.0405.
(b) When applying the requirements of Rule .0404(a) to
auction firms or their applications, the requirements shall apply
to the firm, the applicant for the license, and all the principals,
officers and all of the designated person persons of the firm.
Authority G.S. 85B-3(f); 85B-8(a)(l).
.0405 INVOLVEMENT IN COURT ACTION OR
ADMINISTRATIVE HEARING
(a) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s),
and officers, are under a continuing duty to report to the Board
any and all criminal arrests for, charges of or convictions of a
misdemeanorthat has as an essential element dishonesty, deceit,
fraud or misrepresentations, or any arrests, charges or
convictions of any felony. Convictions include findings ofguilt,
guilty pleas, and pleas of nolo contendere. The Board must
receive written notice of any such arrest, charge or criminal
conviction within 30 days ofthe occurrence of any or all of these
events.
(b) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s),
and officers, are under a continuing duty to report to the Board
any and all civil suits involving them that are based upon any
allegation of gross negligence, dishonesty, fraud,
misrepresentation or incompetency, or that in any way involve
an auction sale or a transaction related to an auction matter or
auctioneering. The Board must receive written notice of any
such civil suit within 30 days ofthe date the complaint in the suit
is served on the defendant in the action, or the date a pleading
containing one or more of these allegations is served on a party,
(c) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s)
and, officers, person(s). are under a continuing duty to report to
the Board any and all adminisfrative proceedings which are
commencedagainst them which involve any potential revocation
or suspension of, or other disciplinary action against, any auction
license or auctioneer license that they hold in another state. The
Board must receive written notice of any such administrative
proceeding within 30 days of the date the auctioneer, apprentice
auctioneer or auction firm, including its principals and officers ,
designated person(s). is notified of the administrative
proceeding.
Authority G.S. 85B-3(f); 85B-4.
SECTION .0500 - SCHOOLS OF AUCTIONEERING
.0501 APPLICATION FOR COURSE APPROVAL
(a) Schools of auctioneering seeking approval of their course
shall file an appl ication with the Board on the official school
stationery. The application shall include the following
information: accreditation by the Board shall complete a Board
approved application form.
(i) name, mailing address and telephone number of the
school;
(2) name, mailing address and telephone number of tlie
school—owner;
—
manager and any—other person
responsible for conducting the overall operation ofthe
school;
(3) physical location, including street address, of the
place where classes will be conducted;
(4) a list of all subject s to be tauglit and the number of
hours of instruction devoted to each subject;
(5) lesson outlines and accompanying handouts for each
subject to be taught ; and
(6) the minimum standards for instructors and verification
for each prospective instructor showing compliance
with the established standards as set forth in 21
NCAC 4B .0502(d).
(b) The school shall notify the Board within 30 days of any
change in the information required in Paragraph (a) of this Rule
and this requirement shall continue as long as the school remains
approved by the Board, by the above application form. This
requirement shall continue as long as the school remains
approved by the Board.
Authority G.S. 85B-3(f); 85B-4(d).
.0502 REQUIREMENTS FORAPPROVAL/MINIMUM
STANDARDS
14:23 NORTH CAROLINA REGISTER June 1, 2000 2045
PROPOSED RULES
(a) In order to be accepted as an approved school, and in
order to remain approved, the course curriculum must contain
classroom instruction in the following subjects for the minimiun
number of hours shown:
(1) Essential Core Curriculum (minimum 50 hours);
16 Hours- Bid Calling, Voice Control, Proper
Breathing Techniques,
and Use and Sequence of Numbers;
4 Hours - Advertising;
8 Hours - Auctioneers Law and Rules and
Regulations;
2 Hours - Uniform Commercial Code and Bulk
Transfers;
2 Hours - Drafting and Negotiating Contracts;
2 Hours - Closing Statements and Settlements;
8 Hours - Accounting and Mathematics;
1 Hour - Auctioneering Ethics;
2 Hours - Handling Sale Proceeds and Escrow
Accounts;
2 Hours - Auction Preparation and Setup;
3 Hours - Review and Testing (End of Course).
(A) Courses that include students that will become
North Carolina applicants must provide a
minimum of two hours of instruction on the
North Carolina Auctioneers Law and Rules,
G.S. 85B and 21 NCAC 4B; and
(B) a minimum of two hours of instruction as such
will be included within the minimum required
8 hours instruction of Auctioneers Law and
Rules and Regulations.
(2) Supplemental Instruction Areas (min. 30 hours):
Antiques Heavy Equipment
Real Estate Automobiles
Tobacco Cattle and Livestock
Environmental Issues Public Speaking
Computers Estate Sales
Firearms Appraising
Foreclosure & Bankruptcy
Sales Sales Tax Requirements
Art, Rugs, Jewelry Hygiene & Personal
Appearance
Body Language Ring Work
Farm Machinery Consignment Auctions
Minimum hours are not required in individual
supplemental subjects, however, all topics must be
addressed in the school.
(b) Students attending an approved course must attend and
successfully complete a minimum of 80 hours of classroom
instruction according to the list of subjects and minimum hours
of instruction in each subject specified in Paragraph (a) of this
Rule. An hour of creditable instruction is defined as 50 minutes
of classroom instruction or practical exercise accompanied by a
10 minute break.
(c) Each course offered must include instruction by a
minimum of five different instructors, at least two ofwhom must
be professional auctioneers. Regardless of the total number of
hours taught by any given instructor, no more than 20 hours of
an individual's instruction may be counted to satisfy the
requirements of Paragraph (a) of this Rule.
(d) The school shall establish standards for all persons who
instruct in an approved school with minimum training or
experience, or a combination thereof, in the particular field in
which they are instructing. In addition to the initial filing for
approval set forth in 21 NCAC 4B .0 5 01(a)(6), the school shall
annually fil e with the Board the school's established minimum
standards and verification for each instructor who has taught
during the preceding year showing compliance with the
standards.
(e) The school shall provide or make available suitable
facilities, equipment, materials and supplies necessary for the
course, specifically including:
(1) a comfortable, well-lighted and ventilated classroom
with a seating capacity sufficient to accommodate all
students; and
(2) audio-visual equipment and other instructional devices
and aids necessary and beneficial to the delivery of effective
training.
Authority G.S. 85B-3(f): 85B-4(d).
SECTION .0600 - GENERAL AUCTIONEERING
.0601 CHANGE OF ADDRESS OR BUSINESS NAME
OR OWNERSfflP
(a) All licensees shall notify the Board in writing of each
change or addition of residence or business address (including
mailing address) and change of trade name, assumed name, or
combination of names under which the licensee conducts
business related to auctions.
(b) In the case of a corporate l icensee, license, said licensee
shall immediately notify the Executive Director of any change in
the directors or officers of the corporation and such new
director(s) or officer(s) shall comply with the provisions of
Subparagraphs (d)(1), (4) and (5) (d)(1). (21 (31 (51 (6} and (7)
in Rule .0201 ofthis Subchapter. Ifthe new directors or officers
have a 5 1% or greater controlling interest in the corporation, the
firm license shall be retired and the firm shall apply for a new
license.
(c) In the case of a partnership license, said licensee shall
immediately notify the Executive Director of any change in
partners and such new partners shall comply with the provisions
of Subparagraphs (d)( 1 ), (4) and (5) (d)(n. (2). (3). (5). (6) and
(7} in Rule .0201 of this Subchapter.
(d) In the case of an auction fiim license, the licensee: shall i
iminediately noti fy the Executive Dii-ector of any change in
designated person(s) and such designated persons shall comply
with the provisions of Subparagraphs (d)(1), (4) and (5) in Rule
.0201 of this Subchapter. In the case of an auction firm license,
the licensee shall immediately notify the Executive Director of
any change in a designated person(s). If the designated person
is a currently licensed auctioneer under G.S. 85B. the designated
person shall be required to comply with the provisions of
Subparagraphs (d)(1). (61 aiid (7} in Rule .0201 of this
Subchapter. If the designated person is not a currently licensed
auctioneer under G.S. 85B. the designated person shall be
required to comply with the provisions of Subparagraphs (d)(1).
2046 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
{2\ (3). (6) and (7) in Rule .0201 of this Subchapter.
(e) Any change in address, business name or ownership
required by these Rules shall be reported within 10 days of the
occurrence of such change.
Authority G.S. 85B-3(f).
.0602 ADVERTISING
(a) In all advertisements relating to an auction, the
auctioneer's, apprentice auctioneer's or auction firm's name and
license number shall be clearly given. If an auctioneer is
working for or in conjunction with an auction firm, such
relationships shall be disclosed and both license numbers shall
be clearly given. A general advertisement which does not
concern a specific sale(s) and which does not list sale dates,
times or locations, generally referred to as trolling or holding
advertisements, shall not be subject to any identification
requirement. A licensee may advertise under a name, assumed
name, trade name, or combination of names, only if written
notice has been previously filed with the Board. The licensee
shall also notify the Board of all certificates filed with any
county register of deeds in compliance with G.S. 66-68.
(b) Any licensee who advertises an "Estate Sale" shall
specifically disclose, in all advertisement materials, whether it is
the estate of a living or deceased person. Before conducting an
auction as an "estate sale", the majority of items in the sale shall
come from the estate of the living or deceased person(s). Other
items not related to or in an estate may be sold with an estate if
specifically disclosed at or before the time of the auction.
(c) It shall be a violation of these Rules to advertise a
"Bankruptcy Sale" unless the item(s) offered for sale, whether
real or personal, are fi-om an active bankruptcy action. Before
conducting an auction as a "bankruptcy sale", the majority of the
items in the sale shall come from the bankruptcy of one or more
parties. Other items not related to or from a bankruptcy action
may be sold with items from a bankruptcy action if specifically
disclosed at or before the time of the auction.
(d) It shall be a violation of these Rules to advertise an item,
either real or personal, as "Absolute" or "Without Reserve" ifthe
item is subject to confirmation, minimum bid, or any other
condition of sale. Before advertising an auction as absolute or
without reserve, the majority of items in the sale shall be offered
for sale absolute or without reserve. Items that are not absolute
may be included in the auction provided they are specifically
designated as such in all announcements or advertisements.
(e) It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Urgent", "Emergency",
"Distress" or any other word which connotates liquidation of
assets or that the buyers will, for some extraordinary reason, be
in a position to reap some unusual bargain without specifically
disclosing, in the written advertisement in a print size equal to
the descriptive word, the reason that the sale is "urgent", the
nature of the "emergency" or the cause of the "distress", etc.
(f) It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Seized", "Confiscated",
"Forfeited" or any other word which connotes a governmental
action whereby items are seized or taken by a govenmient
department, agency or commission and released or sold or that
the buyers will, for some governmental reason, be in a position
to reap some unusual bargain without specifically disclosing, in
the written advertisement in a print size equal to the descriptive
word, the exact nature of the goverrmient action.
(g) It shall be a violation of these Rules to advertise any items
as being fi-om an "estate" or a "bankruptcy", or from an "urgent",
"emergency", "distress", "seized", "confiscated", "forfeited" or
similar sale, unless the consignor of the item(s) to be sold is the
original owner of the item(s), the designated representative of
the owner, or a federal, state or local department, agency or
commission charged with disposing of the item(s), and
consigned the item(s) directly to the advertised sale.
(h) It shall be a violation of these Rules to:
(1) Reference the U.C.C. or any other imiform act or
federal or state law in any advertisement unless such
act or law is required, by law, to be referenced;
(2) Reference or mention any federal, state or local
department, agency or commission in any
advertisement unless specifically required by law to
do so or unless prior written approval is received from
such department, agency or commission; or
(3) Otherwise connote in any advertisement that the
auction is under the auspices of, at the direction of or
required by federal or state law or act or a federal,
state or local agency or commission and that the
buyers will, for some legal or governmental reason, be
in a position to reap some unusual bargain.
(i) It shall be a violation of these Rules to advertise for sale
items which the auctioneer/firm does not intend to offer for sale
at the advertised auction.
(j) It shall be a violation of these Rules for an auctioneer or
auction firm to permit its name or license number to appear on
any advertisement for an auction without reviewing the contents
of the advertisement prior to its publication to ascertain its
compliance with applicable law and Rules.
(k} It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Contents". "Stock".
"Inventory". "Liquidation" or anx other word which connotes
that the items to be auctioned are present on the premises of a
residence, business, building or establishment unless the items
were physically present continuously for 30 days prior to the
signing of the contract or written agreement Before conducting
an auction using any of the descriptive words, the majority ofthe
items in the sale shall be fi"om the premises. Other items not
related to or from the contents of the residence or business may
be included in the auction provided they are specifically
designated as such in all advertisements previous to the sale.
The 30 day requirement shall not apply to items used in direct
conjunction with the residence or business and brought to the
site solely for the purpose of sale at auction.
Authority G.S. 85B-1; 85B-3(f); 85B-8(a)(4).
.0605 BIDDING
No auctioneer/firm shall bid on items in a sale he is
conducting or procure such a bid without the intent to purchase
the item. However, in a sale with reserve, the auctioneer/firm
may bid on the reserve item up to, and including, the amount of
14:23 NORTH CAROLINA REGISTER June 1, 2000 2047
PROPOSED RULES
the reserve price without the intent to purchase the item. In any
auction where the auctioneer/firm bids on an item in a sale being
conducted by such auctioneer/firm or such auctioneer/firm
procures such a bid, the auctioneer shall announce such bidding
in advance of the auction.
Authority G.S. 25-2-328(4); 85B-3(f).
SECTION .0800 - CONTINUING EDUCATION
.0801 CONTINUING EDUCATION COURSE
(a) To renew a license on active status, an auctioneer,
apprentice auctioneer, or designated person(s) in an auction firm
shall complete a Board approved course(s) consisting of the
hours of instruction as established in Subparagraph (d) of this
Rule and shall provide documentation of completion of the
above Board approved course(s) within one vear preceding
license expiration.
(1) "Within one vear preceding license expiration time
period" shall be defined as May 1 6 to the following
May 15.
£2) An auctioneer, apprentice auctioneer, or designated
person(s) in an auction firm shall provide
documentation on required continuing education
courses by the May 1 5 deadline ofthe current renewal
period.
(3) If the required documentation is not received by the
established deadline as set forth in Subparagraph (2)
of this Rule, the licensee will automatically be
assessed a late fee as set forth in Subparagraph
.0202a))(lQ) of this Subchapter.
(4) The renewal shall not be processed until compliance
is achieved and the required fees are received as set
forth in Subparagraph .0402(b) of this Subchapter.
(h) The Board shall approve courses that shall be conducted
by sponsors approved by the Board under this Rule. The subject
matter of this course shall be determined by the course sponsor
subject to Subparagraph (h) of this Rule. The course sponsor
shall produce or acquire instructor and student materials. The
course must be conducted as prescribed by the rules in this
Section. At the beginning of the course, sponsors must provide
licensees participating in their classes a copy of the student
materials developed by the sponsor.
(c) Approval of a sponsor to conduct a course authorizes the
sponsor to conduct the course using an instructor who has been
approved by the Board as a course instructor under Rule .0804
of this Section. The sponsor may conduct the course at any
location as frequently as is desired during the approval period.
(d) The Board shall establish at its April monthly Board
meeting of each year the minimum classroom hours of
instruction for the upcoming year. Upon receipt of renewal,
licensees shall be notified of the required minimumhours for the
following year's renewal.
(e) An auctioneer, an apprentice auctioneer, or a designated
person(s) in an auction firm shall complete the continuing
education requirements for each renewal period that their license
was lapsed or suspended.
(f) Credit hours applied to the current renewal of a license
shall not be used for fiittire renewals.
(g) Excess continuing education hours may be carried
forward as credits for a maximum of one renewal year.
(h) The Board shall have the authority in its discretion to
mandate the topic(s) for all or part of an approved course.
£i} No part of any prelicensing course curriculum shall count
as continuing education credit hours.
(]} Continuing education shall not be required until the second
renewal after initial licensing pursuant to G.S. 85B-4(e).
Authority G.S. 85B-4.(el).
.0802 APPLICATION FOR ORIGINAL APPROVAL
(a) An entity seeking original approval to sponsor a course
must make application on a form prescribed by the Board. The
applicant must submit a nonrefundable fee of one hundred
dollars ($100.00) which may be in the form of a check payable
to the North Carolina Auctioneers Commission; provided,
however, that no fee is required if the entity making application
is a community college, junior college, college or university
located in this State and accredited by the Southern Association
of Colleges and Schools, is an agency of federal, state or local
govenmient. or an incorporated trade organization or an
association of licensees to whom the Board has donated fijnds
pursuant to G.S. 85B-4.1(c). An applying entity that is not a
resident of North Carolina shall also file with the application a
consent to service df process and pleadings.
(b) Approval to sponsor a course shall be granted to an
applicant upon showing to the satisfaction of the Board that:
(1) The applicant has submitted all information required
by the Board and paid the application fee, if
applicable;
(2) The applicant has at least one proposed instructor who
has been approved by the Board as a course instructor
under Subsection .0804 of this Section;
(3) The applicant satisfies all of the requirements of Rule
.0805 of this Section relating to qualifications or
eligibility of course sponsors; and
(4) The applicant and the continuing education
coordinator required by Rule .0805 Paragraph (e)
must be truthfiil. honest and of high integrity. In this
regard, the Board may consider the reputation and
character of any owner, officer or director of any
corporation, association or organization applying for
sponsor approval.
Authority G.S. 85B-4(el).
.0803 STUDENT FEE FOR COURSES
Sponsors of a course may establish the amount of the fee to
be charged to students taking this course; provided, however,
that the established fee must be an all-inclusive fee and no
separate or additional fee may be charged to students for
providing course materials, providing course completion
certificates, reporting course completion to the Board, or for
recouping similar routine administrative expenses.
Authority G.S. 85B-4(el).
2048 NORTH CAROLINA REGISTER June I, 2000 14:23
PROPOSED RULES
.0804 APPROVAL OF CONTINUING EDUCATION
INSTRUCTORS
(a) Approval of course instructors shall be a

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NORTHCAROLINA
MEGISfER
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
RECEIVED
JUN 6 2000
KATHRJNE R. EVERETT
LAW LIBRARY
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Admmistrative Procedure Act or any of itsi
components, consult with the agencies below. The bolded headings are typical issues which the given"
agency can address, but are not inclusive.
Rule Notices. Filings. Register. Deadlines, Copies of Proposed Rules, etc
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Raleigh, North Carolina 27601-2817
contact: Molly Masich, Director APA Services
Ruby Creech, Publications Coordinator
///
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Fiscal Notes & Economic Analysis
Office of State Budget and Management
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f Raleigh, North Carolina 27603-8005
contact: Warren Plonk, Economist III
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Riile Review and Legal Issues
Rules Review Commission
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\
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Y contact: Joe DeLuca Jr., Staff Director Counsel
Bobby Bryan, Staff Attorney
\ \ — x\ '"*'
(919) 733-2721
(919) 733-9415 FAX
Legislative Process Concerning Rule-making ^^ «»*«*t1
Joint Legislative Administrative Procedure Oversight Committee
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Raleigh, North Carolina 27611 >-J"7'^-^^^^^^^^ (919) 715-5460 FAX
contact: MaryShuping, Staff Liaison j€^ _
marysi@ncleg.net
County and Municipality Government Questions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Sti-eet (9 1 9) 7 1 5-2893
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contact: Jim Blackburn or Rebecca Troutman
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contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
REGISTER
IN THIS ISSUE
Volume 14, Issue 23
Pages 2023 - 2079
I. IN ADDITION
Voting Rights Letters 2023 - 2026
n. RULE-MAKING PROCEEDINGS
Administrative Hearings, Office of
Hearings Division 2028 - 2029
Healtti and Human Services
Facility Services 2027
Insurance
Actuarial Services Division 2027
Property and Casualty Division 2027
Labor
OSHA 2027 - 2028
Licensing Boards
Dental Examiners 2028
Transportation
Motor Vehicles, Division of 2028
June 1, 2000
This issue contains documents officially filed
throughMay 10, 2000.
III. PROPOSED RULES
Agriculture
Hurricane Floyd Recovery Programs 2032 - 2034
Structural Pest Control Division 2030 - 2031
Veterinary Division 203 1 - 2032
Labor
Departmental Rules 2034 - 2040
Elevator and Amusement Device Div 2040
Licensing Boards
Auctioneers, Commission for 2040 - 2053
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editorial Assistant
Jessica Flowers, Editorial Assistant
Dana Sholes, Editorial Assistant
rV. TEMPORARY RULES
Election, Board of
Ballot Rotation Rules for Primary
Election Ballots 2054
V. RULES REVIEW COMMISSION 2055 - 2058
VI. CONTESTED CASE DECISIONS
Index to ALJ Decisions 2059 - 2070
Text of Selected Decisions
99 EHR 0980 2071 - 2076
99 EHR 0989 2071 - 2076
99 EHR 1084 2071 - 2076
99 OSP 1 135 2077 - 2079
VII. CUMULATFVE INDEX 1-113
North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings, 424 North Blount Street, Raleigh, NC
27601 . (ISSN 1 5200604) to mail at Periodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the North Carolina Register,
PC Drawer 27447. Raleigh, NC n(,\\-lAAl.
NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM
The North Carolina Administrative Code (NCAC) hasfour major subdivisions ofrules. Two ofthese, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when
appropriate.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS (CHAPTER
1 Administration Acupuncture 1
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resoiu-ces Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Aid Dealers and Fitters 22
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Massage & Bodywork Therapy 30
*21 Occupational Licensing Boards Marital and Family Therapy 31
22 Administrative Procediu'es (Repealed) Medical Examiners 32
23 Community Colleges Midwifery Joint Committee 33
24 Independent Agencies Mortuary Science 34
25 State Personnel Nursing 36
26 Administrative Hearings Nursing Home Administrators 37
27 NC State Bar Occupational Therapists 38
Opticians 40
Optometry 42
Osteopathic Examination & Reg. (Repealed) 44
Pastoral Counselors, Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Siureyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Veterinary Medical Board 66
Note: Title 21 contains the chapters of the various occupational licensing boards.
I
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INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:JBG:TGL:nj Voting Section
DJ 166-012-3 PO. Box 66128
2000- 1014 Washington. D. C. 20035-6128
2000-1161
April 18,2000
Robert C. Cogswell, Jr., Esq.
City Attorney
P.O.Box 1513
Fayetteville, North Carolina 28302-1513
Dear Mr. Cogswell:
This refers to seven annexations (Ordinance Nos. 99-05-436, 99-05-437, 99-07-438, 99-1 0-439, 99-1 1 -440, 99-1 1 -441 , and
99- 1 2-442), their designation to districts, and the procedures for conducting the May 2, 2000, special charter amendment election for
the City of Fayetteville in Cumberland County, North Carolina, submitted to the Attorney General pursuant to Section 5 ofthe Voting
Rights Act, 42, U.S.C. 1973c. We received your submissions on March 8 and 16, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure ofthe Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes.
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the procedures for
the Administration of Section 5 (28 C.F.R. 51.41 and 51.43).
Section 5 preclearance should be sought for any changes from existing voting practices adopted as a result of the special
election. Your submission of such changes should include the relevant sections ofthe existing charter as well as the amended versions
of those sections. See C.F.R. 51.27
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
14:23 NORTH CAROLINA REGISTER June 1,2000 2023
INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:GLH:KIF:par Voting Section
DJ 166-012-3 PO. Box 66128
2000-0797 Washington. D.C. 20035-6128
2000-7207
April 25, 2000
David A. Holec, Esq.
City Attorney
P.O. Box 7207
Greenville, North Carolina 27835-7207
Dear Mr. Holec:
This refers to 1 1 annexations (Ordinance Nos. 109 through 113, 134, 135, 147 through 149, and 155 (1999)) and their
designation to council districts of the City of Greenville in Pitt County, North Carolina, submitted to the Attorney General piu-suant
to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on February 25 and March 13, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes.
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for
the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
(
2024 NORTH CAROLINA REGISTER June 1, 2000 14:23
INADDITION
'
U.S. Department of Justice
Civil Rights Division
JDR:DEBR:JGD:nj:jdh Voting Section
DJ 166-012-3 PO. Box 66128
2000-0802 Washington, D.C. 20035-6128
April 25, 2000
Donald I. McRee, Jr., Esq.
County Attorney
P.O. Box 39
Elizabeth City, North Carolina 27907-0039
Dear Mr. McRee:
This refers to the realignment ofvoting precincts for Pasquotank County, North Carolina, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submission on February 25, 2000; supplemental
information was received on April 19, 2000.
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change.
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
cc: Ms. Glenda W. Crane
Director, Pasquotank County Board of Elections
<
14:23 NORTH CAROLINA REGISTER June 1,2000 2025
INADDITION
U.S. Department of Justice
Civil Rights Division
JDR:JBG;JGD:nj Voting Section
DJ 166-012-3 PO. Box 66128
2000-0976 Washington, D.C. 20035-6128
May 3, 2000
Albert M. Benshoff, Esq.
City Attorney
P.O. Box 1388
Lumberton, North Carolina 28539
Dear Mr. Benshoff:
This refers to four annexations (adopted on June 28 and September 13,1 999) and their designatio to districts of the City of
Lumberton in Robeson County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, j
42 U.S.C. 1973c. We received your submissions on March 6, 2000. ^
The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes.
See the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Joseph D. Rich
Acting Chief
Voting Section
\
2026 NORTH CAROLINA REGISTER June 1, 2000 14:23
RULE-MAKING PROCEEDINGS
A Notice ofRule-making Proceedings is a statement ofsubject matter ofthe agency's proposed rule making. The agency must
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text ofa rule.
Publication ofa temporary rule serves as a Notice ofRule-making Proceedings and can befound in the Register under the
section heading ofTemporary Rules. A Rule-making Agendapublished by an agency serves as Rule-making Proceedings and
can befound in the Register under the section heading ofRule-making Agendas. Statutory reference: G.S. 150B-2L2.
TITLE 10 - DEPARTMENT OF HEALTH AND
HUMAN SERVICES
CHAPTER 3 - FACILITY SERVICES
Ty Totice ofRule-making Proceedings is hereby given by the
1 y North Carolina Medical Care Commission in accordance
with G.S. 150B-21.2. The agency shall subsequently publish in
the Resister the text ofthe rule(s) itproposes to adopt as a result
of this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: 10
NCAC 3Q - Other rules may be proposed in the course of the
rule-making process.
Authority for the rule-making: G.S 131E-147; 131E-149
Statement of the Subject Matter: The rules pertain to
licensing requirementsfor ambulatory surgeryfacilities.
Reason for Proposed Action: The purpose ofthe rule-making
will be to more explicitly define whichfacilities are required to
be licensed and tofurther clarify requirementsfor licensure.
21-35; 58-50-130
Statement of the Subject Matter: Surplus lines insurance and
small employer group health insurance.
Reason for Proposed Action: Changes in surplus lines rules to
reflect changes in statutes; and repeal ofobsolete rulesfor small
employer group health insurance.
Comment Procedures: Written comments should be sent to
Ellen K. Sprenkel, N.C Department of Insurance, P.O. Box
26387, Raleigh, NC 27611.
TITLE 13 - DEPARTMENT OF LABOR
CHAPTER? -OSHA
'K Totice ofRule-making Proceedings is hereby given by the
ly N.C. Department of Labor in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Comment Procedures: Written comments should be submitted
to Jackie R. Shepard, Rule-making Coordinator, Division of
Facility Services, 2701 Mail Service Center, Raleigh, NC
27699-2701. Telephone: (919)733-2342.
Citation to Existing Rules Affected by this Rule-Making: 13
NCAC 7F. 0101, .0201, 0401 - Other rules may beproposed in
the course ofthe rule-making process.
Authority for the rule-making: G.S. 95-4; 95-131; 95-133;
TITLE 11 - DEPARTMENT OF INSURANCE
CHAPTER 10 - PROPERTY AND CASUALTY
DIVISION
CHAPTER 16 - ACTUARIAL SERVICES DIVISION
'\ Totice ofRule-making Proceedings is hereby given by the
lyN.C. Department of Insurance in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making: / /
NCAC 10 .0700; 11 NCAC 16 .0300 - Other rules may be
proposed in the course ofthe rule-making process.
Authority for the rule-making: G.S. 58-2-40; 58-21-15; 58-
Statement of the Subject Matter: The N.C. Division of
Occupational Safety and Health (OSHNC) is presently
developing rules to protect workers during the construction,
erection, installation, operation, maintenance, and disassembly
of communication towers. It is the goal of the Department to
amend existing rules relating to the safe installation, operation,
maintenance, rearrangement and removal of equipment,
including, but not limited, to conductors used for signal or
communication service or relating to support structures and
containing structures.
Reason for Proposed Action: Changes in technology and
equipment in recent years have brought about a significant
increase in the number of communication towers. Injuries
involving falls from communication towers are serious, if not
fatal. Communication towers are not adequately addressed in
the Federal Occupational Safety and Health Standards for
General Industry, for the Construction Industry or in the North
Carolina Standardsfor Shops Fabricating Structural Steel and
14:23 NORTH CAROLINA REGISTER June 1, 2000 2027
RULE-MAKING PROCEEDINGS
Steel Plate, as adopted verbatim or amended by the N.C.
Department of Labor's Occupational Safety and Health
Division. North Carolina's Occupational Safety and Health
Standards are being amended to clarify employer
responsibilities in regard to matters such as, but not limited to,
personal protective equipment (PPE) for workers during
construction ofandworkon andaround communication towers.
'\ jotice ofRule-making Proceedings is hereby given by the
ly N.C. State Board ofDental Examiners in accordance with
G.S. 150B-21.2. The agency shall subsequently publish in the
Resjster the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Comment Procedures: Written comments must be submitted to
Angela S. Waldorf N.C. Department of Labor, 4 W. Edenton
Street, Raleigh, NC 27601.
TITLE 19A - DEPARTMENT OF TRANSPORTATION
CHAPTER 3 - DIVISION OF MOTOR VEHICLES
Citation to Existing Rules Affected by this Rule-Maldng: 21
NCAC MB .0306; 161 .0101-.0109; 16R .0101-.0105; 16Q
.0101, .0202-.0205, .0301-.0303, .0401-.0403, .0501-.0502,
.0601 - Other rules may be proposed in the course ofthe rule-making
process.
Authority for the rule-making: G.S 90-28; 90-29; 90-30; 90-
30.1; 90-48; 90-222; 90-225.1
A Jotice ofRule-making Proceedings is hereby given by the
ly Division of Motor Vehicles in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) itproposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
19A NCAC 03D .0519 - Other rules may be proposed in the
course ofthe rule-making process.
Authority for the rule-making: G.S. 20-2; 20-39; 20-183.4;
183.8A
Statement of the Subject Matter: Rules state conditions under
which licensed emissions inspection stations conduct vehicle
inspections.
Reason for Proposed Action: Federal Register 40 CFR, Part
51.361(a) requires states to enforce a registration denial
program which refuses renewal ifa vehicle is not in compliance
with emissions inspection requirements. G.S. 120-183. 8A
requires N.C. DMV to assess a civil penalty if a vehicle is not
inspected within 4 months ofsticker expiration. Amendments to
this Rule set software requirements for stations to transfer
information to and receive emissions confirmationfrom DMVby
telephone. Two telephone calls per transaction are required.
Amendments to this Rule require that the emission stations pay
charges directly to the telephone contractor.
Comment Procedures: Any interested person may submit
written comments on theproposed rule by mailing the comments
to Emily Lee, N.C. DOT, 1501 Mail Service Center, Raleigh, NC
27699-1501 by September 15, 2000.
TITLE 21 - OCCUPATIONAL LICENSING BOARDS
CHAPTER 16 - NORTH CAROLINA STATE BOARD
OF DENTAL EXAMINERS
Statement of the Subject Matter: Notice is hereby given in
accordance with G.S. 150B-21.2 that the North Carolina State
Board of Dental Examiners (Board) will consider adopting
rules, repealing rules, or amending rules addressing foreign
graduates applying as candidatesfor examination, management
arrangements, continuing education reporting requirementsfor
dentists and dental hygienists, and general anesthesia and
sedation requirements.
Reason for Proposed Action: To revise requirements for
foreign graduates applying as candidatesfor examination; to set
out requirements for management arrangements; to revise
continuing education reporting requirements for dentist and
dental hygienists; to revise general anesthesia and sedation
requirements.
Comment Procedures: Written comments may be submitted on
the subject matter ofthe proposed rule-making to Christine H.
Lockwood, Executive Director ofthe Boardat the Board's office.
The Board's address is P.O. Box 32270, Raleigh, NC 27622-
2270.
TITLE 26 - OFFICE OF ADMINISTRATIVE
HEARINGS
CHAPTER 26 - HEARINGS DIVISION
TV Totice ofRule-making Proceedings is hereby given by the
1 V Office ofAdministrative Hearings in accordance with G.S.
150B-21.2. The agency shall subsequently publish in the
Resister the text ofthe rule(s) it proposes to adopt as a result of
this notice of rule-making proceedings and any comments
received on this notice.
Citation to Existing Rules Affected by this Rule-Making:
26 NCAC 3 - Other rules may be proposed in the course ofthe
rule-making process.
2028 NORTH CAROLINA REGISTER June 1, 2000 14:23
RULE-MAKING PROCEEDINGS
Authority for the rule-making: G.S. 7A-751
Statement of the Subject Matter: To adopt or amend rules
related to Administrative Law Judge and mediation settlement
conferences: and the use ofinterpreters in the hearing process.
Reason for Proposed Action: The contested case mediation
and Administrative Law Judge settlement conference rules are
in need of conformity with the current procedures and rules
adopted for the superior courts by the Dispute Resolution
Commission and approved by the Supreme Court. OAH also
will adopt rules governing the use ofsign language interpreters
to accommodatepersons who are hearing impaired to conform
with current state andfederal rules, and to adopt other rules
governing the use of foreign language interpreters in the
contested case process.
Comment Procedures: Comments should be addressed to Joey
Propst, OAH, 6714 Mail Service Center, Raleigh, NC27699-6714.
I
14:23 NORTH CAROLINA REGISTER June 1, 2000 2029
PROPOSED RULES
This Section contains the text ofproposed rules. At least 60 days prior to the publication oftext, the agency published a Notice
ofRule-making Proceedings. The agency must accept comments on the proposed rulefor at least 30 daysfrom thepublication
date, or until the public hearing, or a later date ifspecified in the notice by the agency. The required commentperiod is 60 days
for a rule that has a substantial economic impact ofat leastfive million dollars ($5, 000, 000). Statutory reference: G.S. 150B-
21.2.
TITLE 2 - DEPARTMENT OF AGRICULTURE
AND CONSUMER SERVICES
Notice is hereby given in accordance with G.S. 150B-21.2
that the N.C. Structural Pest Control Committee intends to
amend rules cited as 2 NCAC 34 . 0505-. 0506. Notice ofRule-making
Proceedings was published in the Register on April 3,
2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to Carl Falco,
Secretary, N.C. Structural Pest Control Committee, P.O. Box
27647, Raleigh, NC 27611.
Reason for Proposed Action: This action was initiated as a
result of a petition submitted by Ron Schwalb, Nisus
Corporation.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to Carl Falco, Secretary, N.C. Structural
Pest Control Committee, P.O. Box 27647, Raleigh, NC 27611.
State
Fiscal Impact
Local Sub. None
•
CHAPTER 34 - STRUCTURAL PEST CONTROL
DIVISION
SECTION .0500 - WOOD-DESTROYING INSECTS
.0505 SUBTERRANEAN TERMITE
PREVENTION/RES BLDGS UNDER CONST
(a) All treatments performed pursuant to this Rule shall be
performed at the label recommended rate and concentration only.
(b) Basement or Crawl Space Construction
(1) Establish a vertical barrier in the soil by trenching or
trenching and rodding along inside of the main
foundation wall; the entire perimeter of all multiple
masonry chimney bases, pillars, pilasters, and piers;
and both sides of partition or inner walls with a
termiticide from the top of the grade to the top of the
footing or to a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
but not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the top of the
footing, whichever is less. Where drain tile, french
drains, or other foundation drainage systems present
a hazard of contamination outside the treatment zone,
treatment shall be performed in a maimer that will not
introduce termiticide into the drainage system.
(2) After a building or structure has been completed and
the excavation filled and leveled, so that the final
grade has been reached along the outside of the main
foundation wall, including any landscaping to be
completed by the builder, establish a vertical barrier in
the soil by trenching or trenching and rodding
adjacent to the outside of the main foundation wall
with a termiticide from the top of the grade to the
bottom of the footing or to a minimum depth of 30
inches, whichever is less. Where footings are
exposed, treatment shall be performed adjacent to the
footing and not below the bottom of the footing.
Trench shall be no less than six inches in depth or to
the bottom of the footing, whichever is less. Where
drain tile, french drains, or other foundation drainage
systems present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
maimer that will not infroduce termiticide into the
drainage system.
(3) Establish a horizontal termiticide barrier in the soil
within three feet of the main foundation, under slabs,
such as patios, walkways, driveways, terraces, gutters,
etc., attached to the building. Treatment shall be
performed before slab is poured, but after fill material
or fill dirt has been spread.
(4) Establish a horizontal termiticide barrier in the soil
under the entire surface of floor slabs, such as
basements, porches, entrance platforms, garages,
carports, breezeways, sun rooms, etc. The treatment
shall be performed before slab is poured but after fill
material or fill dirt has been spread.
(5) Establish a vertical termiticide barrier in the soil
around all critical areas, such as expansion and
construction joints and plumbing and utility conduits,
at their point of penetration of the slab or floor or, for
crawl space construction, at the point of contact with
the soil.
(6) If concrete slabs are poured prior to treatment,
treatment of slabs shall be performed as required by 2
NCAC 34 .0503(a) or (b): Except that; the buyer of
the property and/or his authorized agent may release
the licensee from further treatment of slab areas under
this Rule provided such release is obtained in writing
on the form prescribed by the Division. This form
may be obtained by writing the North Carolina
Department of Agriculture and Consumer Services,
2030 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
Structural Pest Control Division, PO Box 27647,
Raleigh, NC 2761 1 or by calling (919) 733-6100.
(c) Slab-on-Ground Construction. All parts of Paragraph (a)
of this Rule shall be followed, if applicable, in treating
slab-on-ground construction.
(d) All treating requirements specified in this Rule shall be
completed within 60 days following the completion of the
structure, as described in Subparagraph (b)(2) of this Rule.
(e) Paragraphs (b) and (c) of this Rule shall not apply to
subterranean termite treatment performed using termite bait(s)
labeled for protection of the entire structure when the licensee
provides a warranty for the control of subterranean termites on
the entire structure.
(f) Paragraphs (b) and (c) of this Rule shall not apply to
subterranean termite treatment performed using EPA registered
topicallv applied wood treatment termiticides labeled for the
protection of the entire structure when the licensee applies the
material according to labeled directions and provides a warranty
for the control of subterranean termites on the entire structure.
Authority G.S. 106-65.29.
.0506 MIN REQUIRE/SUBTERRANEAN TERMITE
PREV/COMMERCIAL BLDGS UNDERCONST
(a) All treatments performed pursuant to this Rule shall be
performed at the label recommended rate and concentration only.
(b) Minimum Treatment Requirements:
(1) Establish a vertical barrier in the soil by trenching or
trenching and rodding along inside of the main
foundation wall; the entire perimeter of all multiple
masonry chimney bases, pillars, pilasters, and piers;
and both sides of partition or inner walls with a
termiticide from the top of the grade to the bottom of
the footing or a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
but not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the bottom of
the footing, whichever is less. Where drain tile,
french drains, or other foundation drainage systems
present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
marmer that will not introduce termiticide into the
drainage system.
(2) After a building or structure has been completed and
the excavation filled and leveled, so that the final
grade has been reached along the outside of the main
foundation wall, including any landscaping to be
completedby the builder, establish a vertical barrier in
the soil adjacent to the outside of the main foundation
wall by trenching or trenching and rodding with a
termiticide fi'om the top of the grade to the top of the
footing or to a minimum depth of 30 inches,
whichever is less. Where footings are exposed,
treatment shall be performed adjacent to the footing
and not below the bottom of the footing. Trench shall
be no less than six inches in depth or to the bottom of
the footing, whichever is less. Where drain tile.
french drains, or other foundation drainage systems
present a hazard of contamination outside the
treatment zone, treatment shall be performed in a
manner that will not introduce termiticide into the
drainage system.
(3) Establish a horizontal termiticide barrier in the soil
within three feet of the main foundation, under slabs,
such as patios, walkways, driveways, terraces, gutters,
etc. Treatment shall be performed before slab is
poured but after fill material or fill dirt has been
spread.
(4) Establish a vertical termiticide barrier in the soil
around all critical areas, such as expansion and
construction joints and plumbing and utility conduits,
at their point of penetration of the slab of floor, or for
crawl space construction, at the point of contact with
the soil.
(5) If concrete slabs are poured prior to treatment,
treatment of slabs shall be performed as required by 2
NCAC 34 .0503(a) or (b).
(c) Paragraph (b) of this Rule shall not apply to subterranean
termite treatment performed using termite bait(s) labeled for
protection of the entire structure when the licensee provides a
warranty for the control of subterranean termites on the entire
structure.
(d) Paragraph (b) of this Rule shall not apply to subterranean
termite treatments using EPA registered topically applied wood
treatment termiticides labeled for the protection of the entire
structure and the licensee applies the material according to
labeled directions and provides a warranty for the control of
subterranean termites on the entire structure. When foundation
areas contain no wood or cellulose components and the wood
treatment termiticide cannot be applied according to label
directions then applications specified in Paragraph (b) or (c) of
this Rule would be required.
Authority G.S. 106-65.29.
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Board of Agriculture intends to
amend rules cited as 2 NCAC 523 . 0208-. 0209. Notice ofRule-making
Proceedings was published in the Register on April 3,
2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to David S.
McLeod, Secretary, North Carolina Board ofAgriculture, PO
Box 27647, Raleigh, NC 27611.
Reason for Proposed Action: Brucellosis and tuberculosis is
known to exist in goat and sheep herds in other states. The
14:23 NORTH CAROLINA REGISTER June 1, 2000 2031
PROPOSED RULES
proposed change is necessary to prevent the introduction and
spread ofthese diseases in North Carolina.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to David S. McLeod, Secretary, North
Carolina Board of Agriculture, PO Box 27647, Raleigh, NC
27611.
Fiscal Impact
State Local Sub. None
CHAPTER 52 - VETERINARY DIVISION
SUBCHAPTER 52B - ANIMAL DISEASE
SECTION .0200 - ADMISSION OF LIVESTOCK TO
NORTH CAROLINA
when it can be determined that the sheep will be isolated from
other animals at the North Carolina destination until dipped.
(d) Sheep consigned for the purpose of immediate slaughter
to a recognized stockyard, or to a slaughtering establishment
with state or federal inspection may be imported without a health
certificate. A waybill or certificate marked for immediate
slaughter must accompany such shipments.
(e) Sheep over six months of age and sexually intact imported
from out-of-state shall have a negative brucellosis test within 30
days prior to import, and all imports must have a negative
tuberculosis test within 60 days prior to import unless they
originate from a certified and accredited herd unless they are
consigned to a slaughtering establishment under state or federal
inspection.
Authority G.S. 106-307.5.
.0208 IMPORTATION REQUIREMENTS: GOATS
Goat s All goats entering the state for dairy, breeding except
those consigned to a federal or exhibition purposes state-inspected
slaughteringestablishment shall be accompanied by an
official health certificate from the state of origin. The health
certificate shall state that the goats were clinically free of any
infectious or communicable disease. The health certificate shall
include a description of each animal, the age, sex, breed and
color or marking shall be given. No health certificate is required
for goats cons igned to a slaughtering establishment under state
or federal inspection. Goats over six months of age and sexually
intact imported from out-of-state shall have a negative
brucellosis test within 30 days prior to import, and all imports
over six months of age must have a negative tuberculosis test
within 60 days prior to import unless they originate from a
certified and accredited herd or unless they are consigned to a
slaughtering establishment under state or federal inspection.
Authority G.S. 106-307.5; 106-396
.0209 IMPORTATION REQUIREMENTS: SHEEP
(a) The health certificate covering the importation of sheep
shall include a report of inspection by a veterinarian approved by
the chief livestock sanitary official of the state of origin
indicating the sheep are not under quarantine and are free from
signs of any infectious or communicable disease. The health
certificate shall contain a statement that the flock of origin has
not had scrapie diagnosed within the past 42 months.
(b) Sheep which have not been handled in stockyards, stock
pens or on premises in public use for livestock may be imported
without dipping, from a state or area designated as scabies-free
by the United States Department of Agriculture.
(c) Unless waived by the State Veterinarian, sheep for
purposes other than immediate slaughter that have not been
dipped in accordance with the regulations of the Animal and
Plant Health Inspection Service, Veterinary Services, United
States Department of Agriculture may not be imported into the
state. While in transit they shall be accompanied by a certificate
of such dipping. The requirements for dipping will be waived
Notice is hereby given in accordance with G.S. 1508-21.
2
that the N.C. Department of Agriculture and Consumer
Services intends to adopt rules cited as 2 NCAC 55 .OlOl-.Ol 04;
.0201-.0203; .0301-.0303; .0401-.0403; .0501 -.0503. Notice of
Rule-making Proceedings was published in the Register on
March 1, 2000.
Proposed Effective Date: March 1, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Anyperson may
request a public hearing on the proposed rules by submitting a
request in writing no later than June 16, 2000, to David S.
McLeod, APA Coordinator, N.C. Department ofAgriculture and
Consumer Services, Legal Affairs Office, PO Box 27647,
Raleigh, NC 27611.
Reason for Proposed Action: The proposed rules implement
Hurricane Floyd recovery assistanceprogramsfor agriculture,
pursuant to the Hurricane Floyd Recovery Act of 1999, S.L.
1999-463.
Comment Procedures: Written comments may be submitted no
later than July 3, 2000, to David S. McLeod, APA Coordinator,
N.C. Department ofAgriculture and Consumer Services, Legal
Affairs Office, PO Box 27647, Raleigh. NC 27611.
Fiscal Impact
State Local Sub. None
CHAPTER 55 - HURRICANE FLOYD RECOVERY
PROGRAMS FOR AGRICULTURE
SECTION .0100 - PURPOSE; AVAILABILITY OF
FUNDS; DEFINITIONS; EXPIRATION
.0101 PURPOSE
The purpose of this Chapter is to establish guidelines for the
2032 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
implementation of disaster assistance programs for farmers who
suffered losses as a result of Hurricane Floyd. The assistance Authority S.L 1999-463, s. 4.
provided under this Chapter is intended to supplement federal
disaster assistance programs. This program is authorized by the
Hurricane Floyd Recovery Act, Session Law 1999-463 of the
1999 Extra Session of the General Assembly.
Authority S.L. 1999-463, s. 4.
.0102 AVAILABILITY OF FUNDS
The assistance programs described in this Chapter are subject
to the availability of funds from the Hurricane Floyd Reserve
Fund in the Office of State Budget and Management, or from
other sources. This program shall be administered in accordance
with the Hurricane Floyd Recovery Act and the requirements of
the Office of State Budget and Management.
Authority S.L. 1999-463, s. 4.
.0103 DEFINITIONS
As used in this Chapter:
(1) "Commissioner" means the Commissioner of
Agriculture.
(2) "Department" means the Department of Agriculture
and Consumer Services.
.0203 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of funds, assistance may be provided in
amounts not to exceed:
(1) 1 7 percent of a producer's crop loss as docimiented by
USDA-FSA: and
(2) 30 percent of a producer's livestock loss as
documented by USDA-FSA.
Authority S.L. 1999-463, s. 4.
SECTION .0300 - STRUCTURES AND EQUIPMENT
LOSS ASSISTANCE
.0301 ELIGIBILITY FOR ASSISTANCE
A farm owner or operator whose uninsured farm structures,
farm roads or farm equipment were damaged or destroyed as a
result of Hurricane Floyd may submit an application for
assistance under this program to the USDA-FSA county office
on a form provided by the Department. "Structures" shall not
include lagoons, as defined in G.S. 106-802. Applications must
be received in the USDA-FSA county office by March 15. 2000.
(3) "Disaster area" means the counties that were declared Authority S.L. 1999-463, s. 4.
a disaster by the President of the United States as a
result of Hurricane Floyd.
(4) "FSA" means the Farm Service Agency of the United
States Department of Agriculture.
(5} "USDA" means the United States Department of
Agriculture.
Authority SL 1999-463, s. 4.
.0104 EXPIRATION
This Chapter shall expire on December 3 1 . 2000.
Authority S.L. 1999-463, s. 4.
SECTION .0200 - CROP LOSS AND LIVESTOCK
ASSISTANCE
.0302 APPLICATION PROCEDURES
Applications shall be forwarded by USDA-FSA to the
Department. The Department shall determine eligibility for
assistance based on information provided by the farm owner or
operator in the application. The application shall include:
(1) a copy of an invoice or estimate for repairs, not to
exceed fair market value prior to Hurricane Floyd; or
(2} in the case of a total loss, a copy of an appraisal of the
fair market value prior to Hurricane Floyd.
The invoice, estimate, appraisal or other supporting
information must have been prepared by a person who is known
to be competent to prepare such estimates or appraisals and who
has no financial interest in the applicant's farm operations.
Authority S.L. 1999-463, s. 4.
.0201 ELIGIBILITY FOR ASSISTANCE
A producer who is eligible for crop or livestock disaster
assistance from USDA-FSA shall be eligible for assistance
under this program. In addition, a producer who is not eligible
for federal assistance may be eligible for assistance under this
program if he or she has a loss documented by USDA-FSA. A
"swine operation integrator." as defined in G.S. 143-215. lOH.
shall not be eligible for livestock loss assistance.
Authority S.L. 1999-463, s. 4.
.0202 APPLICATION PROCEDURES
Assistance under this program shall be based on informafion
provided to the Department by USDA-FSA. No additional
application shall be required.
.0303 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of funds, assistance may be provided in
amounts not to exceed 40 percent of uninsured structure or
equipment loss, or 50 percent of farm road restoration cost.
Authority SL. 1999-463, s. 4.
SECTION .0400 - EMERGENCY CONSERVATION
PROGRAM COST SHARE BUY DOWN
.0401 ELIGIBILITY FOR ASSISTANCE
A producer who is eligible for assistance under the USDA-FSA
Emergency Conservation Program shall be eligible for the
cost share buy down assistance program.
14:23 NORTH CAROLINA REGISTER June 1, 2000 2033
PROPOSED RULES
Authority S.L 1999-463, s. 4.
,0402 APPLICATION PROCEDURES
Assistance under this program shall be based on information
provided to the Department by USDA-FSA from the producer's
application for assistance from USDA-FSA under the
Emergency Conservation Program. No additional application
shall be required.
Authority S.L. 1999-463, s. 4.
,0403 MAXIMUM LEVEL OF ASSISTANCE
Subject to availability of fiinds. assistance may be provided in
amounts not to exceed 1 8 percent ofthe total cost of the practice
approved by USDA-FSA. Assistance provided under this
Section may not be used to repair or rebuild a "lagoon." as
defined in G.S. 106-802.
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Written requests
for a public hearing on this proposed action must be directed to
Angela S. Waldorf, NC Department ofLabor, 4 West Edenton
St., Raleigh, N.C. 27601 on or before June 16, 2000.
Reason for Proposed Action: In theyears since the rules were
last revised, there have been many changes in the Department,
the Administrative Procedures Act and other laws affecting the
work ofthe Department. The purpose ofthis rule-making is to
update the rules, e.g. by repealing rules which amount to little
more than a restatement ofpersonnel law and regulations.
Comment Procedures: Written comments must be directed to
Angelas. Waldorf, N.C. Department ofLabor, 4 W. Edenton St.,
Raleigh, NC 27601. Comments will be received through July 3,
2000.
Authority SL. 1999-463, s. 4.
SECTION ,0500 - COMMODITY ASSOCIATIONS AND
COOPERATIVES ASSISTANCE
,0501 APPLICATIONS FOR ASSISTANCE
Commodity associations and cooperatives may submit an
application for assistance to the CommissionerofAgriculture on
a form provided by the Department.
Authority S.L. 1999-463. s. 4.
Fiscal Impact
State Local Sub. None
,0502 ELIGIBILITY FOR ASSISTANCE
A commodity association or cooperative shall
documentation of losses suffered due to Hurricane Floyd.
Authority S.L. 1999-463, s. 4.
.0503 LEVEL OF ASSISTANCE
Subject to availability of fiinds. the Commissioner of
Agriculture may provide assistance to commodity associations
or cooperatives on a 212 rata basis for losses suffered due to
Hurricane Floyd.
Authority S.L. 1999-463. s. 4.
TITLE 13 - DEPARTMENT OF LABOR
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Department of Labor intends to
amend rules cited as 13 NCAC IB .0101 - .0103; and repeal
rules cited as 13A NCAC lA .0101 - .0104, .0201; IB .0202 -
.0203, .0301 - .0307. .0404 -.0405. .0501 - .0502, .0602, .0605
-
.0608; IC.OIOI - .0103, .0106. .0201 - .0205. Notice ofRule-making
Proceedings was published in the Register on October
1, 1999.
Proposed Effective Date: March 15, 2001
CHAPTER 1 - DEPARTMENTAL RULES
SUBCHAPTER lA - GENERAL PROVISIONS AND
ORGANIZATION
SECTION .0100 - GENERAL PROVISIONS
.0101 NAME: ADDRESS: HOURS
The central office of the North Carolina Depai tmeiit of Labor is
provide located in Raleigh. The mailing address of the Jepai ti neiit is.
North Carolina Department of Labor, Raleigh, North Carolina.
The business hours of the department are from 8 a.m. to 5 p.m.
Monday through Friday, except official state holidays.
Authority G.S 95-1; 95-4; 143A-67.
.0102 PURPOSE
The depai-tment is responsible for promoting the safety, health
and general we ll-being of the industi- ial population of the state.
The depai tnient administers and enforces safety regulat ions,
wage and hour lavys, apprenticeship regulat ions, mine and quarry
regulations, el evator regulations, boil er and pressure vesse l
regulat ions, and regulations for private employment agencies.
In addition, the depailment offers aI^bitl^ation and mediation
seiTices for labor-management disputes through its conciliation
and al^bitration division.
Authority G.S 95-4; 95-11.
.0103 COMMISSIONER
The Comniissioner of Labor , who is el ected by the people for a
term of four years, is the executive and administrative head of
the department. Tlie commissioner supervises tlie administration
and enforcement of labor laws, regulations, and programs.
Authority G.S 95-2; 95-4; 143A-68.
2034 NORTH CAROLINA REGISTER June I, 2000 14:23
PROPOSED RULES
.0104
The-i
DEPUTY COMMISSIONER: ASSISTANT TO
THE COMMISSIONER
coinimssioner will appoint a deputy commissioner and an
assistant to tlie commissioner. The deputy commissioner will be
responsible—for—daily
—
administration—and
—
operation—of
depaitiiiental programs. Tlie assistant to tlie commissioner will
serve as a special assistant performing such duties and projects
as may be designated by the commissioner.
Authority G.S. 95-4.
SECTION .0200 - ORGANIZATION
.0201 DIVISIONS
The Depai tment of Labor is organized into nine major
divisions :
{\)—administration division,
(2)
—
apprenticeship and training division,
(3)
boiler and pressure vessel division,
(4) conciliation and arbitration division,
(5) elevator inspection division,
(6)
mine and quarry division,
(7)
occupational safety and health division,
(8) state inspections and services division,
(9)
statistics division.
Authority G.S. 74-24.19; 94-4; 95-4; 95-11; 95-12; 95-35;
95-36.3; 95-47.9; 95-69.12; 95-133; 143A-69.
SUBCHAPTER IB - RULE-MAKING AND
ADMINISTRATIVE HEARING PROCEDURES
SECTION .0100 - PETITIONS FOR RULES
proposed text in WordPerfect or MSWORD or other
word-processing program convertible to WordPerfect
or MSWORD. The requirement for a computer disk
shall be waived upon a showing of lack of access to
such a word-processing program;
(3) reasons for the proposal;
(4) the effect of the proposed amendment or rule
including: on existing mles or orders;
(a) The on the existing rules;
(h) The effect on local government, if any, as
described in OS^ 1506-21(0) and 150B-
21.4(b);
(c) Whether the proposed amendment or rule
would have a substantial economic impact as
defined m OS, 150B-21.4(bl) and an
estimation of such impact and how the estimate
was derived:
(d) The primary types of employees, businesses or
other entities on which there would be an
effect.
(5) any supporting data or other materials such as
examples and research; supporting—the
proposal;
(6) effect ofthe proposed rule on existing practices in the
area—
i
nvolved,—including—cost
—
factors; names,
telephone and facsimile numbers and address(es)
including e-mail address(es) of the petitioner(s). If
petitioner(s) represent organizations or entities, the
name(s) and addresses of the represented
organizations shall also be provided;
(7)
—
names of those most likely to be affected by the
proposed rule, with addresses if reasonably known;
(8)
name(s) and address(es) of petitioner(s).
.0101 PETITION FOR RULE-MAKING HEARINGS
Any person wishing to submit a petition requesting the adoption,
amendment or repeal of a rule by the Commissioner of Labor
shall address submit the a petition in writing to: Commissioner
of Labor. Rule-making Coordinator. N.C. Department of Labor
4 West Edenton Street, Raleigh, North Carolina zT^W. 27601-
1092. The exterior of the envelope or container of the petition
should shall clearly bear the notation: RULE-MAKING
PETITION. RE and then the subj ect al^ea or an indication of any
other area over which the Comnussioner of Labor may have
rule-making authori ty.
Authority G.S. 95-4(2).
.0102 CONTENTS OF PETITION
The petition should shall include the following information:
following:
(1) an indication of the subject area to which the petition
is directed; directed and, if known the number of the
North Carolina Administrative Code to which the new
proposed rule is proposed to be added;
(2) either a dl^aft of the proposed rule or a summaiy of its
contents; a printed copy of the text of the proposed
amendment or rule and a computer disk containing the
Authority G.S 95-4(2); 150B-16
.0103 DISPOSITION OF PETITIONS
(a) The rule-making coordinator designated under G.S. 150B-
2 1 or the commissioner's designate designee shall will determine
whetlier the public mterest will be served by granting review the
request. If the requirements of 13 NCAC IB .0102 regarding
the contents of the petition are not met, the petition shall not be
accepted and shall be returned to the petitioner(s) with the
deficiencies noted. Prior to making this determination, the
commissioner's designate may request additional Additional
information maybe requested from the petitioner(s).
petitioner(s); he may contact interested persons or persons likely
to be affected by the proposed mle and request comments; he
may use any other appropriate method for obtaining information
on which to base his deleiniination. He will consider all of the
contents of the pet i tion submitted plus any other information
obtained by the means described here in.
(b) Tlie designated officer will make a recommendation to the
commissioner for the institution of mle-making proceedings or
for the denial of the pet i tion, as the case may be . Complete
petition(s) and accompanying materials shall be reviewed to
determine whether the petition(s) will be granted or denied.
Review of a petition may include additional information
14:23 NORTH CAROLINA REGISTER June 1, 2000 2035
PROPOSED RULES
gathered by the department. Petitioner(s) shall be notified ofthe
decision of the department in accordance with G.S. 150B-20.
(c)
—
Within 30 days of submission of the petition, a final
decision will be rendered by tlie commissioner. If the decision
is to deny the pet i tion, the commissioner will notify the
petitioner in wri ting, stating the reasons therefor. If the decision
Authority G.S. 95-4; 150B-12.
.0303 RECEIPT OF REQUEST: SPECIFIC TIME
LIMITS
Upon receipt of notice of a person's desire to present his views
orally, the commissioner will acknowledge receipt ofthe request
to grant the petition, the commissioner, witliin 30 days of and inform the person of the imposition of any limitations
deemed necessary to the end of a full and effective public
proposed rule.
IS gr
submission, will initiate a rule-making proceeding by issuing a
rule-making notice, as provided in these rules.
Authority G.S. 95-4(2); 150B-16. Authority G.S. 95-4; 150B-12.
SECTION .0200 NOTICE OF RULE-MAKING
HEARINGS
.0202 NOTICE MAILING LIST
Any person or agency desiring to be placed on the mailing list
for Department of Labor rule-making noti ces, may file such
request in wri ting is name and mailing address to:
.0304 WRITTEN SUBMISSIONS
(a) Any person may file a written submission containing data,
comments or arguments, after publication of a rule-making
notice and within 1 days after the hearing, unless a different
period has been prescribed in the notice or granted upon request .
These written comments should be sent to the Commissioner of
Labor, 4 West Edenton Street , Raleigh, North Carolina 27601.
Commissioner of Labor, 4 West Edenton Street, Raleigh, North They should clearly state the rule(s) or proposed rul e(s) the
Carolina 27601 . Tlie letter of request should state those subj ect
areas within the authority of the commissioner for which he
wants notice. The commissioner may require reasonable postage
and stationery costs to be paid by persons receiving such notices.
comments are addressed to.
(b) Upon receipt ofwritten coiuments, acknowledgement will
be made with an assurance that the comments therein will be
considered fiilly by the Commissioner of Labor.
Authority G.S. 95-4; 150B-12. Authority G.S. 95-4; 150B-12.
.0203 ADDITIONAL INFORMATION
Persons desiring information in addition to that provided in an
individual rule-making notice may contact: The Commissioner
of Labor, 4 West Edenton Street, Raleigh, North Carolina
27601 . Any written communication should clearly indicate the
rul e-making proceeding which i s the subject of the inquiry.
Authority G.S 95-4; 150B-12.
SECTION .0300 - RULE-MAKING HEARINGS
.0301 REQUEST TO PARTICIPATE
Any person desiring to present oral data, vi ews, or ai^guments on
the proposed iiil e must, at least five days prior to the hearing, fil e
a notic e with the Depaitment of Labor.—Notice of de sire to
.0305 PRESIDING OFFICER: POWERS AND DUTIES
The presiding officer at the hearing shall have complete control
of the—proceedings,—
i
ncluding:—
e
xtensions—of any—time
requirements, recognition of speakers, time allotments for
presentations, the right to question speakers, direction of the
discussion, and management of the hearing.—Tlie presiding
officer, at all times, will take care that each person participating
in the hearing is given a fair opportunity to present views, data
and coirunents.
Authority G.S 95-4; 150B-12.
.0306 STATEMENT OF REASONS FOR DECISION
(a) Any interested person de siring a concise statement of the
principal reasons for and against the adoption of a rule by the
appear may be waived, or failul^e to give not ice may be excused, commissioner and the factors that led to overruling the
by the presiding officer, in his discretion. Any person permitted
to make an oral presentation is encouraged to submit a written
copy of the presentation to the commissioner or his designate
prior to or at the hearing.
Authority G.S 95-4; 150B-12.
.0302 CONTENTS OF REQUEST: GENERAL TIME
LIMITATIONS
A request to make an oral pres entation should contain a cl eai-
reference to the proposed rul e, a brief summaiy of the
individual's vi ews in respect tliereto, and how long the individual Authority G.S. 95-4; 150B-12.
desires to speak. Presentations shall be limited to 15 minute s
unl ess the commissioner pre sc r ibe s some other time limit.
considerations urged against i ts adoption, may submit a reque s t
to the Commissioner of Labor , 4 West Edenton Street , Raleigh,
North Carolina 27601.
(b) Forpuiposes of Subsection (a) of this Rule , an "interes ted
person" shall be any person(s) whose rights, dut i e s, or privil eges
might be affected by tlie adoption of the rul e in question, or any
group or organization of persons whose rights, dut ies or
privil ege s might be affected by the rule.
(c) TTie request must be made in writing and submitted prior
to adopt ion of the rul e or within 30 days thereafter.
.0307 RECORD OF PROCEEDINGS
A record of all mle-making proceedings will be maintained in
2036 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
the Commissioner of Labor's office for as long as the rule is in
e ffect, and for five years thereafter, following filing with the
Office ofAdministrative Hearings. This record will contain : the
original petition, the notice, all wri tten memoranda and
information submitted, and a record or summary of oral
presentation, ifany. Records ofrule-making proceedings will be
available for public inspection during the regular offic e hours of
the Depai liiient of Labor.
Authority G.S. 95-4; 150B-12.
SECTION .0400 - DECLARATORY RULINGS
.0401 SUBJECTS OF DECLARATORY RULINGS
Any person substantially affected by a statute administered or
rule promulgated by the Commissioner of Labor, may request a
declaratory ruling as to either the manner in which a statute or
rule applies to a given factual si tuation, if at all, or whether a
particular agency rule is valid.
Authority G.S. 95-4; 150B-17.
.0402 SUBMISSION OF REQUEST FOR RULING
All requests for declaratory rulings shall be written and mailed
to the Commissioner of Labor, 4 West Edenton Street , Raleigli,
Nortli Carolina 27601 . The container of the request should bear
the notation : REQUEST FOR DECLARATORY RULING.
The request must include the following infonnat ion:
(f)
—
name and address of peti tioner;
(2) statute or rule to which peti tion relates;
(3)—
c
onci se statement ofthe manner in which petitioner is
aggrieved by the rule of statute or its potential
application to him;
(4)
a statement of whether an oral hearing is desired, and
if so, the reason therefor.
Authority G.S. 95-4; 150B-17.
.0403 DISPOSITION OF REQUESTS
(a) Wlien the Commissioner of Labor deems i t appropriate to
issue a declai-atoiy ruling he shall issue such declaratoiy mling
within GO days of receipt of the pet i tion.
(b) A declai-atory ruling proceeding may consist of wr i tten
submissions, an oral hearing, or other proc edure as may be
appropriate in the circumstances of the particular request.
(c) Wlienever the commissioner believes "for good cause"
that the issuance of a declaratory ruling is undesirable, he may
refuse to issue such ruling. Wlien good cause is deemed to exist,
he will noti fy the petitioner of his decision in writing, stating the
reasons for the denial of the declaratory ruling.
(d) For purposes of Subpart (c) of this Rule, the
Commissioner of Labor ordinarily refuses to issue a declaratoiy
ruling:
{¥) unless the petit ioner shows that the circumstances are
so changed since the adoption of the rul e that such a
ruling would be wartanted;
t2)
unless the peti tioner shows that the agency did not
give to the factors specifi ed in the request for a
declaratory ruling a full consideration at the time the
rul e was issued;
(3)
—
where there has been a similar controlling factual
detei'iiiinat ion in a contested case, or where the factual
context being raised for a declaratory ruling was
specifically considered upon the adoption of the rule
or directive being questioned, as evidenced by the
rule-making record;
where tlie subject matter of the request is involved in
pending litigation in any state or federal court in
North Carolina.
(4)-
Authority G.S. 95-4; 1508-17.
.0404 RECORD OF DECISION
A record of all declaratory rule-making proceedings will be
maintained in tlie Depai tii ient of Labor for as long as the ruling
is in effect and for five years thereafter.—This record will
contain : the pet i tion, the notice, all written submissions filed in
the request, whether filed by the petitioner or any other persons,
and a record or summary of oral presentations, if any. Records
of rule-making proceedings will be available for public
inspection during the regular office hours of the Depaitment of
Labor.
Authority G.S 95-4; 150B-17.
.0405 DEFINITION
For purposes of Rule .0404 of this Section, a declaratory ruling
shall be deemed to be "
in effect
"
: until the statute or rule
interpreted by the declaratory ruling is amended, altered or
repealed; until the Depaitment of Labor changes the declaratory
ruling prospectively for good reasons; or until any court sets
aside the ruling in litigation between the Depaitment of Labor
and the party requesting the rule; or unt il any court of the
Appellate Division ofthe General Court ofJustice shall construe
the statute or rule which is the subject of the declaratory ruling
in a mamier plainly irreconc ilable with the declaratory ruling.
Authority G.S 95-4; 150B-17.
SECTION .0500 - ADMINISTRATIVE HEARING
PROCEDURES
.0501 RIGHT TO HEARING
Wlien the Commissioner of Labor, by his official action, acts or
proposes to act in a manner which will affect the rights, duties,
privil eges or a license of a specific, identifiable person or
persons, those persons have a right to an administrative hearing.
Wlien the commissioner proposes to act in such manner, he shall
give to any such person or persons notic e of their right to a
hearing by mailing by c ertified mail to such person at his last
known address a notice of the proposed action and a notice of a
right to a hearing. Such person or persons may assert his or their
right to a hearing by mailing to the commissioner by certifi ed
mail a request for a hearing as provided in Rul e .0502(c) of this
Section, except that attempts at informal resolution are not
required, and a heari ng will be gl^anted provided that the
14:23 NORTH CAROLINA REGISTER June 1, 2000 2037
PROPOSED RULES
container of the request beal^s a postmark dated prior to the date
on which the commissioner proposed to act .
Authority G.S. 95-4; 150B-23.
.0502 PETITION FOR HEARING
(a)
—
Any time an individual bel ieves his rights, dutie s or
privileges—have—been
—
affected—by—the
—
commissioner's
administrative action, but has not received notice of a right to an Authority G.S. 95-4; 150B-36.
administrative hearing, that individual may Fil e a fonnal request
for a hearing.
fb)
Before an individual may file a request he must First
exhaust all reasonable efforts to resolve the issue informally with
the commissioner's ofFice. Tliis requirement will be satisFied by
decision of the matter by the Deputy Commissioner of Labor.
(c) Subsequent to such informal action, if still dissatisFied, tlie
individual should File a petition for a hearing witli the OfFice of
Administrat ive Hearings in accordance with Article 3 ofChapter
1 50B of the General Statutes.
Authority G.S. 95-4(2).
.0607 FINAL DECISIONS IN ADMEVISTRATFVE
HEARINGS
The Commissioner of Labor will issue the Fmal decision in all
contested cases. His decision i s the prerequisite "Final agency
decision" for the right to judicial review.
.0608 APPLICABILITY
All rules of procedure for adininistrative hearings as outlined in
Sections .0500 and .0600 of diis Subchapter are applicable to all
divisions of the depailment except the division of occupational
health—and—safety
—
administration. The—nries
—
governing
administrative hearings in that division are set forth in
Subchapter 7D of Title 13 of the North Carolina Administrative
tooe:
Authority G.S. 95-4.
SECTION .0600 - ADMINISTRATIVE HEARINGS:
DECISIONS: RELATED RIGHTS AND
PROCEDURES
.0602 SIMPLIFICATION OF ISSUES
Except as prohibited by statute, the parties to a contested case,
specifically including the commissioner, may agree in advance
to simplify the hearing by: decreasing the number of the issues
to be contested at the hearing, accepting the validity of certain
proposed evidence, accepting the Findings in some other case
with relevance to the case at hand, or agreeing to such other
matters as may expedite the hearing.
Authority G.S. 95-4; 150B-33.
.0605 REQUEST FOR DEPARTMENT RECORDS
(a) Any paity may request to examine any ident iFiabl e records
of the department which are relevant to the material facts of a
contested case. Such requests shall be made in writing to the
director of the appropriate division and shall specify, as Authority G.S. 95-4(2).
prec isely as possibl e , the records being sought , and the reasons
therefor.
Authority G.S. 1508-2(2); 150B-23(a).
SUBCHAPTER IC - PERSONNEL RULES
SECTION .0100 - AFFIRMATIVE ACTION POLICY
.0101 GENERAL PROVISIONS
It is the policy of this depai tineiil to provide equal employment
opportunities to all applicants for state employment and to
provide for training, compensation, promotion, and all other
atu ibutes of employment to employee s without regard to race,
religion, national origin, sex, age or physical handicap, except
where sex, age or physical requirements are essential, bona fide,
occupational qualifications. This depai tmeiil's commitment to
equal career opportunity requires a continuing progl^am of
affirmative action in order to assure that all personnel policies
and practices relevant to total employment will guarantee equal
opportunities for all persons of the state. Through planning and
instruction positive steps will be taken to implement an
affinnat ive act ion program designed to meet the needs of the
(b) After receiving the request, the director will allow the
party to inspect the requested records and may, after charging
reasonable fees, supply the party with copies of the requested
records.
(c) Wliere the request concerns records related so
internal procedures of the depailment or which are exempt from
disclosureby law, the director may refuse tlie request, stating his
reasons therefor in writ ing.
Authority G.S 95-4(2); 150B-28(b).
.0606 ASSISTANCE OF COUNSEL
A party may, but under no ciixumstances is required to, have the
assistance of counsel at the hearing.
.0102 ASSIGNMENT OF RESPONSIBILITY
The personne l officer for the depaitinent is designated as the
equal employment opportuniti e s (EEC) officer.—Tlie EEC
officer is responsible for the development and implementation
uf die Jepai liiient's afFu-mat ive action progi'am. Tlie EEC officer
l e ly to the is also responsible for the prepai-ation of all reports and surveys
fmnt from concerning the employment of minorit i es, women and the
handicapped as may be required by the OfFice of State Personnel
or other governmental agencies.
Authority G.S 95-4(2).
.0103 JOB STRUCTURING
Positions in the depailment are revi ewed by die position
management division in tlie OfFice of State Personne l, as to job
2038 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
content, experience and educational requirements to insure that channels.—These sources include colleges and universi ties,
unnecessaiy restrictions do not bar minori ty, female or minority organizations, women's organizations, trade groups,
handicapped applicants from securing employinent or being Office—of—State
—
Personnel,—and
—
Employment
—
Security
eligible for promotions.
Authority G.S. 95-4(2).
.0106 DISCRIMINATION COMPLAINTS
(a)
—
Applicants or employees that feel they have been
discriminated against in recruiting, hiring, promotion, training,
or salary administration may appeal directly to the State
Personnel Commission for redress of grievances. —(b) Any person wishing to file a complaint should contact the
Employee Relations Division, Office of State Personnel,
Administration—Building,—Raleigh,—North
—
Carolina,
919/829-7112.
Authority G.S. 95-4(2).
SECTION .0200 - EMPLOYMENT POLICY
.0201 GENERAL PROVISIONS
I t is the policy of tlie North Carolina Department of Labor to
provide equal employment opportunities to all applicants for
state employment without regard to race, religion, national
origin, sex, age or physical handicap. Tlierefore, the following
employment policy is hereby established in accordance witli tlie
depai trnent's policy of afTumati v e action.
Authority G.S. 95-4(2).
.0202 APPLICATION PROCEDURE
(a)
—
Applications for employment with the Depai
"tment of
Labor will be directed to the personnel officer.—Any person
wishing to make referrals should instruct the individual to
complete a state application form (PD 107) and forward to the
personnel officer. Application forms will be available at the
receptionist's desk and from the personnel office.
(b) Walk-in applicants should not be referred to the personnel
officer
—
They may be given an application form by the
recept ionist which should be completed and forwarded to the
personne l office.
(c) All applications will be maintained on fil e for a period of
two years.
(d) If appropriate vacancies exist , the personnel officer will
contact all qualified applicants to schedule ini tial intei
-views.
The merit system will be explained for tliose jobs which requii'e
te sting, and applicants will be instiiicted on th e proper te s t, test
procedures, and schedules.
(e)-HH (e) I t no appropriate vacancies exist , the personnel officer
will acknowledge receipt of all applications by letter and file
applications for futui'e consideration.
Authority G.S 95-4(2).
.0203 JOB VACANCY ANNOUNCEMENTS
(a) Wlien a job vacancy occurs, the personne l officer will
publicly announce the job vacancy through noniial recruitineiit
Commission. All appl ications on file will also be reviewed and
qualified applicants contacted to schedule interviews.—For
positions—under—the
—
merit system,—competitive—services
procedures will be followed as required by the Office of State
Personnel.
(b)—Job vacancy announcements will also be posted on
depai Lniental bulletin boards, and any employee wishing to apply
for the vacant position may do so by filing an application with
the personnel office not later than seven calendar days following
the date of the announcement .—Division directors and tlie
persomiel officer will consider all qualified employees for
promotional opportunities within the depaiCiiienl.
Authority G.S. 95-4(2).
.0204 INTERVIEW PROCEDURES
(a) The first interview for an applicant with the personnel
officer will be general in nature, concerning the applicant's
education, experience, apti tude, interest and general job
information. Information concerning benefits—of state
employment and the work of the Depaitment of Labor will be
described.
(b) Following initial interviews, qualified applicants will be
recommmded—to—the
—
appropriate—division—director—for
consideration.—I t will be the responsibility of the director to
schedule interviews with all applicants recommended at his
convenience .
(c) The second interview will be with the division director,
assistant director or immediate supervisor. A thorough review
of the applicant's qualifications should be made and references
checked. Information regarding the division's work and the job
available should be discussed with each applicant .
Authority G.S. 95-4(2).
.0205 HIRING PROCEDURES
(a)
—
Tlie division diJ^ector shall recommend a qualified
applicant for employment fi^om those referred by the personnel
offic er and not ify the personnel office of his recommendation
using the form DOL-PD-1 . Tliis form is used to re fer applicants
to division directors and include s the applicant's name, position
applied for, interview date , and interviewing official. Tlie form
also provide s a section to record the disposi tion o f the applicant
(i.e. if he qualifi ed for the position, if he does not qualify, if the
division wishe s to offer employment, or if the division does not
wish to offer employment).—Tlie intei
'viewing official must
record a specific reason if he does not wish to offer employment
to a qualifi ed applicant .
(b) With the approval of the deputy commissioner, a l ette r of
intent to the applicant will then be sent by the personnel officer
outlining the position class offered, starting salaiy, salary grade
and step, status of posit ion, and effective date of employment.
(c)
—
Tlie appli cant should respond by letter, accepting or
refusing the position.
(d) All applicants not s elected for employment will rec e ive
14:23 NORTH CAROLINA REGISTER June 1, 2000 2039
PROPOSED RULES
written notice fromtlie personnel offic er. Their applications will
be filed for future consideration when vacancies occur.
Authority G.S. 95-4(2).
********************
Notice is hereby given in accordance with G.S. 150B-21.2
that the N.C. Department ofLabor intends to amend the
rule cited as 13 NCAC 15 .0201. Notice of Rule-making
Proceedings waspublished in the Register on January 14, 2000.
Proposed Effective Date: March 15, 2001
Instructions on How to Demand a Public Hearing (must be
requested in writing within 15 days ofnotice): Written requests
for Public Hearing must be directed to Angela S. Waldorf,
General Counsel, N. C. Department of Labor Legal Affairs
Division, 4 W. Edenton St., Raleigh, NC 27601 on or before
June 16, 2000.
Reason for Proposed Action: Adoption of this amendment
makes permanent the Temporary Rule adopted December 21,
1999. The rule adopts and incorporates by reference the new
American National Standard Safety Codefor Platform Lifts and
Stairway Chairlifts, A18. 1-1999, which became effective
January 1, 2000. Additionally, the rule adopts a minor change
to the standards on inclined stairway chairlifts and inclined and
vertical wheelchair lifts. The change adds flexibility by
permitting the use ofan alternative signaling device. In addition
to use of a bell with stop switch, the use of a means of 2-way
communication will also he permitted.
Comment Procedures: All interested parties are invited to
submit written comments to Angela S. Waldorf at N.C.
Department of Labor, 4 W. Edenton St., Raleigh, NC 27601.
Comments will be received through July 3, 2000.
Fiscal Impact
State Local Sub. None
CHAPTER 15 - ELEVATOR AND AMUSEMENT
DEVICE DIVISION
SECTION .0200 - CODES AND STANDARDS
.0201 ELEVATOR SAFETY CODE
(a) The design, construction, installation, alteration, repair,
replacement, inspection, maintenance and operation of all new
installations of:
(1) Elevators, dumbwaiters, escalators, and moving
walks, inclined stairway chairlifts, and inclin ed and
vertical wheelchair lifts shall conform to these Rules
and the American National Standard Safety Code for
Elevators and Escalators, A 17. 1-1 990 which is
incorporated by reference subject to the modifications
provided in Paragraph (b) of this Rule. This
incorporation includes subsequent amendments and
editions of the Code.
(2) The design, construction, installation, alteration,
repair, replacement, inspection, maintenance and
operation of all new installations of inclined stairway
chairlifts. and inclined and vertical wheelchair lifts
shall conform to these Rules and the American
National Standard Safetv Code for Platform Lifts and
Stairway Chairlifts. A 1 8. 1 - 1 999 which is incorporated
by reference subject to the modifications provided in
Paragraph (h) of this Rule. This incorporation
includes subsequent amendments and editions of this
Code.
(b) The provisions of the American National Standard Safety
Code for Elevators and Escalators, Al 7.1 shall be subject to the
following modifications:
(1) Rule 100.1c(2) - Observations Elevators Not Fully
Enclosed. Change the rule to read as follows:
For observation elevators which are not fully
enclosed, protection at landings shall be provided as
follows:
(A) An enclosure shall be provided which shall
extend a minimum often feet above the floor.
(B) The enclosure shall be constructed of
unperforated material.
(C) Enclosures shall be located in the general line
of the hoistway. Horizontal clearance shall be
the same as stated in Section 108.
(2) Rule 111.10 - Access to Hoistways for Emergency
Purposes. In the first sentence change the word
"may" to "shall."
(3) Rule 204.2d - Side Emergency Exits. Side
Emergency exits shall not be permitted in elevator
cars.
(c) The rules of this Chapter shall control when any conflict
between these rules and the ANSI Code exists.
(d) Copies of the American National Standard Safety Code
for Elevators and Escalators are available for public inspection
in the office of the Division, and may be obtained from the
American Society ofMechanical Engineers, United Engineering
Center, 345 East 47* Street, New York, New York 10017. The
cost is ninety-six dollars ($96.00) per copy.
Authority G.S. 95-110.5.
TITLE 21 - OCCUPATIONAL LICENSING BOARDS
CHAPTER 4 - COMMISSION FOR AUCTIONEERS
Notice is hereby given in accordance with G.S. 150B-21.2
that the North Carolina Auctioneer Licensing Board
intends to adopt rules cited as 21 NCAC 4B .0801-.0819 and
amend rules cited as 21 NCAC 4B .0103, .0201 -.0202, .0302,
.0401 -.0405, .0501 -.0502, .0601 -.0602, .0605. Notice ofRule-making
Proceedings was published in the Register on January
4, 2000.
2040 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
Proposed Effective Date: April 1, 2001
A Public Hearing will be conducted at 3:30 p.m. on June 17,
2000 at the Meadowbrook Inn, Blowing Rock, Norih Carolina.
Reason for Proposed Action: The Auctioneer Licensing Board
proposes this action that will address both the Legislation
enacted in the last General Assembly session and needed
technical changes. Changes that are a direct result ofthe new
Legislation include: the requirements offingerprint cards and
consentforms for background checks, the increase offees to
offset the cost of continuing education programs, the
requirements of continuing education, and the ability of the
Board to assess a civil penaltyfor rule violations. Some ofthe
changes that are ofa technical nature include: broadening the
definition of auctioneering, defining principal(s), clarifying
applicant's requirements, requiring an auctionfirm applicant to
be a principal within thefirm, insertingfingerprint background
checkfees, allowing an apprentice auctioneer to be sponsored
by more than one Board approved licensed auctioneer,
distinguishing between applications and investigations,
requiring a board approved application form for schools of
auctioneering, requiring a minimum of 2 hours instruction in
North Carolina AuctioneerLaw andRules at accredited schools
ofauctioneering, and the addition ofan advertising violation.
Comment Procedures: Interestedpersons maypresent oral or
written comments at the Rule-Making Hearing. In addition, the
record will be open for receipt ofwritten commentsfrom June
1, 2000 to July 1 7, 2000. Written comments notpresented at the
hearing should be directed to Robert Hamilton. The proposed
rules are available for public inspection and copies may be
obtained at the Board's offices at 1001 Navaho Dr., Suite 105,
Raleigh, NC 27609,
Fiscal Impact
State Local Sub. None
• 21 NCAC 04B .0103, .0201 -
.0202, .0302, .0401 -.0404,
.0405, .0501:0502, .0601 -
.0602, .0605, .0801 -.0819.
21 NCAC 04B. 0404
SUBCHAPTER 4B - AUCTIONEER LICENSING
BOARD
SECTION .0100 - ORGANIZATION AND GENERAL
PROVISIONS
.0103 DEFINITIONS
Whenever used in this Chapter:
(1) "Auctioneers Law" or "licensing law" shall refer to
G.S. 85B;
(2) "Auctioneering" or "conduct of auction" or "conduct
of business" shall mean, in addition to the actual
calling of bids, any of the following:
(a) contracting for an auction or auctions,
(3)
(4)
(51
(b) accepting consignments of items for sale at
auction,
(c) advertising an auction,
(d) offering items for sale at auction,
(e) accepting payment and disbiu^sing monies for
items sold at auction, or
(f) otherwise soliciting, arranging, sponsoring, or
managing an auction or auctions or holding
oneself out as an auctioneer;
"Board" shall mean the North Carolina Auctioneers
Commission;
"Minimum Bid" as used in auctions shall mean
minimum opening btds: bids;
"PrincipaKsV as it pertains to auction firms shall
mean director(s). ofFicer(s) and/or paTtner(s).
Authority G.S. 85B-1; 85B-3(f).
SECTION .0200 - APPLICATION FOR LICENSE
.0201 APPLICATION FORMS
(a) Auctioneer. Each applicant for an auctioneer license shall
complete an application form provided by the Board. This form
shall be submitted to the Executive Director and shall be
accompanied by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior coim (or
equivalent official in other states) in each county
where the applicant has resided and maintained a
business within the immediate preceding 60 months
(five years);
(3) the completed fingerprint cards provided by the Board
and the form signed bv the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4} a copy ofthe applicant's high school diploma or proof
of equivalency;
(9)(5} the proper fees, as required by 21 NCAC 4B .0202;
W(6) documentation of required auctioneer schooling or
auctioneer experience, as follows:
(A) Applicants who base their application upon
their successful completion of an approved
school of auctioneering shall submit a
photostatic copy of their diploma or certificate
ofsuccessful completion. Applicants who base
their
—
application—upon—their
—
successful
completion—of—an
—
approved—school—of
auct i o n eering—shall—have
—
successfully
completed this school within the previous five
years, or if completed more than five years
before, the applicant An applicant shall have
successfiilly completed this school within the
five years preceding the date of application or
ifthe applicant has successfiilly completed this
school more than the five years preceding the
date of their application, shall submit
14:23 NORTH CAROLINA REGISTER June 1, 2000 2041
PROPOSED RULES
documentation verifying the applicant's active
lawfiil participation in auctions within the two
years preceding the date of application. The
above referenced participation in auctions is
defined as "Auctioneering" as set forth in
Subparagraph .0103(2) of this Subchapter.
(B) Applicants who base their application upon
their successful completion of an
apprenticeship shall submit a log which was
maintained and completed during the
apprenticeship period which details the exact
hours and dates on which they obtained
apprenticeship experience, with each entry
being verified and signed by their supervising
auctioneer. A minimum of 100 hours of
experience during the apprenticeship two-year
period shall be obtained. Not less than 25 of
the total hours accumulated must be
attributable to bid calling and not less than 50
hours shall be attributable to working as a ring
person, drafting and negotiating contracts,
appraising merchandise, advertising, clerking
and cashiering, with not less than five hours of
accumulated experience documented for each
category. An apprentice who applies for an
auctioneer license under this Part shall submit
his application and supporting documentation
and obtain a passing score on the auctioneer
exam prior to the expiration of his apprentice
auctioneer license, license; and
(5)(7} Non-resident applicants shall also submit a properly
completed "Designation of Agent for Service of
Process Form" with notarized signature and notarial
seal affixed.
(b) Non-Resident Reciprocal Auctioneer. Each non-resident
applicant for auctioneer license, who applies for a North
Carolina license pursuant to G.S. 85B-5 shall complete an
application form provided by the Board. This form shall be
submitted to the Executive Director and shall be accompanied
by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where the applicant
has resided and maintained a business within the
immediate preceding 60 months (five years);
(3) the completed fingerprint cards provided by the Board
and the form signed bv the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4) a copy of the applicant's high school diploma or proof
of equivalency;
(9)15] the proper fees, as required by 21 NCAC 4B .0202;
ffi(6) a statement ofgood standing from the licensing board
or Commission of each and every jurisdiction where
the applicant holds an auctioneer, apprentice
auctioneer or auction firm license; and
(5)(7} a properly completed "Designation of Agent for
Service ofProcess Form" with notarized signature and
notarial seal affixed.
(c) Apprentice Auctioneer. Each applicant for an apprentice
auctioneer license shall complete an application form provided
by the Board. This form shall be submitted to the Executive
Director and shall be accompanied by:
(1) one recent passport-type photograph for
identification;
(2) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where the applicant
has resided and maintained a business within the
immediate preceding 60 months (five years);
(3) the completed fingerprint cards provided by the Board
and the form signed by the applicant consenting to the
check of the criminal history and to the use of
fingerprints and other identifying information;
(4) a copy ofthe applicant's high school diploma or proof
of equivalency;
(3)(51 the proper fees, as required by 2 1 NCAC 4B .0202;
(4)(6} the signature, as designated on the applicant form, of
the licensed auctioneer who will be supervising the
apprentice auctioneer;
(5)(7} a written statement of the proposed supervisor's
background and experience in the auction profession
to include the number and types of auctions conducted
or participated in annually; and
(6)(8} if applicant is a non-resident, a properly completed
"Designation of Agent for Service of Process Form"
with notarized signature and notarial seal affixed.
(d) Auction Firms. An applicant for an auction firm shall be
a principal within the firm. Each applicant for an auction firm
license shall complete an application form provided by the
Board. This form shall be submitted to the Executive Director
and shall be accompanied by:
(1) statements of the results of a local criminal history
records search by the clerk of superior court (or
equivalent official) in each county where any
principal and designated person of the auction firm
has resided and maintained a business within the
immediate preceding 60 months (five years);
(2) the completed fi ngerprint cards provided by the Board
and the form signed by the applicant, any principal
and designated person of the auction fym each of the
principal's and designated person's ofthe auction firm
completed fingerprint cards provided by the Board
and the form signed by each consenting to the check
of the criminal history and to the use of fingerprints
and other identifying information;
(3) a copy of each principal's and designated person's
high school diploma or proof of equivalency;
(2)(41 the proper fees, as required by 2 1 NCAC 4B .0202;
(3)(5j a certified copy of any applicable Articles of
Incorporation, Partnership Agreement, and Assumed
Name Certificate;
(4)(6} a statement ofgood standing from the licensing board
or Commission of each jurisdiction where the
2042 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
applicant firm and any principal and designated
person of such firm holds an auctioneer license ofany
type; and
(5X2} if applicant firm is a non-resident, a properly
completed "Designation of Agent for Service of
Process Form" (one each for the auction firm and for
each principal and designated person ofthe firm) with
notarized signature and notarial seal affixed and, if a
corporation, the corporate seal and corporate
secretary's signature affixed.
Authority G.S. 85B-3(f): 85B-4; 85B-4(d); 858-5.
.0202 FILING AND FEES
(a) Properly completed applications must be filed (received,
not postmarked) in the Board office at least seven days prior to
an established Board meeting date, or in the case of an
application for auctioneer examination, at least 10 days prior to
a scheduled examination and must be accompanied by all
required documents.
(b) License fees are as follows:
(1) New auctioneer license for an applicant who did not
serve an apprenticeship $175.00$250.00
This includes a $100.00 $150.00 annual license fee;
$50.0 $50.00 application fee; and
$25.00 $50.00 examination fee.
(2) New auctioneer license for an
apprentice auctioneer $125.00$200.00
This includes a $100.00 $150.00 annual license fee;
and $25 .00 $50.00 examination fee.
(3) Renewal of auctioneer license $^0:00^15000
(4) New apprentice auctioneer license $tOO;:ee$ 150.00
This includes a $50.00 $100.00 hcense fee and a
$50.00 $50.00 application fee.
(5) Renewal of apprentice auctioneer
license $50:00$ 100.00
(6) New auction firm license (no
examination) $i5O:Oe$200.00
This includes a $100.00 $150.00 annual license fee;
and $50.00 $50.00 application fee.
(7) New auction firm license
(examination) $175.00$250.00
This includes a $100.00 $150.00 annual license fee;
$50.00 $50.00 application fee; and $25.00 $50.00
examination fee.
(8) Renewal ofan auction fmn license $100.00$150.00
(9) Application and processing fee for conversion ofnon-resident
reciprocal license to in state
license $25:0e$50.00
( 1 0) Reinstatement of lapsed license fee or
late fee $25.00$50.00
(in Resident fingerprint card background
check fee $14.00
Applicants who have been continuous residents of
North Carolina for the five vears preceding
the date of application shall only be required to have
a State background check.
(12) Non-resident fingerprint card background
check fee $38.00
Applicants who have not been continuous residents of
North Carolina for the five vears preceding
the date of application shall be required to have both
a State and Federal background check.
(c) The renewal fee for a non-resident reciprocal licensee
under G.S. 85B-5 shall be calculated in the same manner as the
initial application fee pursuant to G.S. 85B-6.
(c)(d) Fees may be paid in the form of a cashier's check,
certified check or money order made payable to the North
Carolina Auctioneer Licensing Board. Checks drawn on escrow
or trust accounts shall not be accepted. Personal checks may be
accepted for payment of renewal fees.
Authority G.S. 85B-4.1; 85B-6.
SECTION .0300 - EXAMINATIONS
.0302 RE-EXAMINATION/REFUND OF FEES
If the applicant does not appear at the initial examination for
which he has been scheduled or fails to pass such examination,
he will be re-scheduled for the next scheduled examination. If
the applicant again does not appear or fails to pass this
examination, a refund of the annual auctioneer or apprentice
license fee will be made and a refund of any Auctioneer
Recovery Fund contribution will be made. No refund of the
application—or
—
examination application, examination or
fingerprint and criminal history check fee is allowed. A
complete new application and proper fees are required if the
person wishes to reapply.
Authority G.S. 85B-4; 85B-6.
SECTION .0400 - LICENSING
.0401 LICENSE NUMBER: DISPLAY OF LICENSE
AND POCKET CARD
(a) When being licensed each individual or firm shall be
issued a license number which remains solely his. Should that
number be retired for any reason (such as death, failure to
continue in the auction business, failure to renew his license, or
any other reason) that number will not be reissued back to the
individual or the firm or to any other individual or firm.
(b) A pocket card will be issued by the Executive Director
giving the auctioneer, apprentice auctioneer or auction firm's
name, license number and date of expiration. The pocket card
must be carried by the licensee, and in the case of auction firms
the designated person(s), at all times when auctioneering
activities are being conducted and shall be available for
inspection by the Executive Director or designated agent of the
Board. An auction firm shall display its license in a prominent
place upon its premises, so as to be visible for inspection by
patrons of the firm.
Authority G.S 85B-3(f); 85B-4.
.0402 LICENSE RENEWAL
(a) Any licensee desiring the renewal of a license which is in
14:23 NORTH CAROLINA REGISTER June 1, 2000 2043
PROPOSED RULES
good standing shall apply for same and shall submit the required
fees and such records or documentation requested by the
Executive Director to verify the licensee's compliance with G.S.
85B and the rules promulgated in this Chapter. All licenses
expire on June 30 each year.
(b) Applications for renewal of licenses will only be
processed by the Board upon receipt of the required fee and any
records, documents, or information, requested pursuant to
Paragraph (a) of this Rule.
(c) Any person or entity who engages in any auctioneering
activities governed by the auctioneers law while the license is
lapsed will be subject to the penalties presc ribed in the law
pursuant to G.S. 85B-9.
(d) Licenses lapsed or suspended in excess of 24 months shall
not be renewable. Persons or fums whose license has been
lapsed or suspended in excess of 24 months and who desire to be
licensed shall apply for a new license and shall meet all the
requirements then existing. Persons or firms whose license has
been lapsed or suspended in excess of 24 months and who desire
to be licensed are exempt from the auctioneer school or the
apprenticeship requirements should the continuing education
requirements be met for all lapsed, suspended and/or inactive
years.
Authority G.S. 85B-3(f); 85B-4.
.0403 APPRENTICE AUCTIONEER LICENSE
(a) An apprentice auctioneer's license is valid only while he
is associated with and supervised by a licensed auctioneer
assigned by the Board. In order to be assigned by the Board as
a supervisor, the Board must receive a written notice, signed by
the prospective supervisor and the apprentice, requesting that the
licensed auctioneer be assigned as a supervisor for the
apprentice. Upon receipt of such a request, the Board shall
evaluate the requested assigimient and such requested
assignment may be denied by the Board if the prospective
supervisor fails to possess a minimum of five years of active
experience in the auctioneering profession or an equivalent
combination oftraining and experience or has committed any act
which constitutes grounds for license suspension or revocation
under the rules of this Subchapter or under G.S. 85B. Upon
termination of the association between the supervisor and the
apprentice, the supervisor shall immediately notify the Board in
writing, showing the date and cause of termination.
(b) The supervising auctioneer shall be on the premises of the
sale location and supervise the apprentice auctioneer at any and
all times that an apprentice auctioneer is engaged in bid calling.
Additionally, the supervising auctioneer shall supervise the
apprentice on a regular basis and ensure that the apprentice
auctioneer conforms with the auctioneer law and Rules adopted
by the Board.
(c) Any licensed auctioneer who undertakes the sponsorship
of an apprentice auctioneer shall ensure that the apprentice
receives training, supervision, and guidance in the following:
(1) A practical and working knowledge of the auction
business including fundamentals of auctioneering,
contract drafting, bid calling, basic mathematical
computations, advertising, and settlement statements;
(2) The provisions of the licensing law;
(3) The Rules of the Board; and
(4) The preparation and maintenance of written
agreements, record books, and other sales records as
required by law.
(d) Apprentices are prohibited from conducting or contracting
to conduct any auction without the prior express written consent
of the sponsor. No sponsor shall authorize an apprentice to
conduct or contract to conduct an auction, to act as principal
auctioneer or handle any funds related to an auction unless the
sponsor has determined that the apprentice has received adequate
training to do so. An apprentice auctioneer may work under
only one licens ed auctioneer at any given time. An apprentice
auctioneer mav work under more than one Board approved
licensed auctioneer at any given time.
(e) The sponsor shall ensure that the apprentice complies with
all of the laws and Rules as they apply to any auction related
transaction approved by the sponsor.
(f) An apprentice auctioneer shall notify the Board, in
writing, immediately upon termination ofhis association with his
supervising auctioneer, at which time his license shall be
immediately held in an inactive invalid status. If an apprentice
auctioneer's supervising auctioneer's license has been suspended,
revoked, or placed on probation the apprentice auctioneer's
license shall be immediately held in an inactive invalid status.
Once in an inactive invalid status, an apprentice auctioneer shall
not conduct or contract to conduct any auction. An apprentice
auctioneer may only remain in this inactive status for a
maximum of 90 days.—If tlie apprent ice auctioneer retains
another sponsor approved by the Board within this 90 day
period, the apprentice auctioneer's license shall not be deemed
to have lapsed under 21 NCAC 4B .0402(d). If an apprentice's
license is invalid greater than 90 days due to a lack of an
approved sponsor, the apprentice upon securing an approved
sponsor shall be required to submit a late fee set forth in
Subparagraph .0202(b)(10).
Authority G.S. 85B-3(f); 85B-4.
.0404 GROUNDS FOR LICENSE DENIAL OR
DISCIPLINE
(a) The Board may assess a civil penalty in accordance with
G.S. 85B-3.1(b") or deny, suspend, or revoke a license, or issue
a letter of reprimand to a licensee, upon any of the following
grounds:
(1) violation of any provision of G.S. 85B;
(2) violation of any provision of the Rules under 21
NCAC, Subchapter 4B;
(3) a check given to the Board in payment of required
fees which is returned unpaid;
(4) allowing an unlicensed person (auctioneer) to call a
bid at a sale;
(5) calling a bid auctioneering at an unlicensed auction
firm sale;
(6) failure to properly, completely and fully complete an
application or making any false statement or giving
any false information in connection with an
application for a license, renewal or reinstatement of
2044 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
a license or any investigation by the Board or the
Board's designee ;
(A) failure to properly, completely cooperate with
any investigation: or
(B) for making any false statement or giving any
false information in connection with any
investigation by the Board or the Board's
designee;
(7) been adjudicated mentally incompetent by a court;
(8) committed a crime the circumstances of which
substantially relate to the auctioneering profession;
(9) violated any federal or state statute or rule which
relates to the auctioneering profession;
(10) practiced the profession for which the holder has a
license while the holder's ability to practice was
impaired by alcohol or other drugs or physical or
mental disability or disease;
(11) been incompetent in practice. A licensee has been
incompetent in practice if the licensee engaged in
conduct which evidences a lack of ability, fitness or
knowledge to apply principles or skills of the
auctioneering profession;
(12) engaged in unprofessional conduct. In this Paragraph
"unprofessional conduct" means the violation of any
standard of professional behavior which through
professional experience has become established in the
auctioneering profession;
(13) obtained or attempted to obtain compensation by
fraud or deceit;
( 1 4) violated any order ofthe Auctioneer Licensing Board;
(15) failure to possess truth, honesty and integrity
sufficient to be entitled to the high regard and
confidence of the public; or
(16) failure to properly make the disclosures required by
21NCAC4B.0405.
(b) When applying the requirements of Rule .0404(a) to
auction firms or their applications, the requirements shall apply
to the firm, the applicant for the license, and all the principals,
officers and all of the designated person persons of the firm.
Authority G.S. 85B-3(f); 85B-8(a)(l).
.0405 INVOLVEMENT IN COURT ACTION OR
ADMINISTRATIVE HEARING
(a) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s),
and officers, are under a continuing duty to report to the Board
any and all criminal arrests for, charges of or convictions of a
misdemeanorthat has as an essential element dishonesty, deceit,
fraud or misrepresentations, or any arrests, charges or
convictions of any felony. Convictions include findings ofguilt,
guilty pleas, and pleas of nolo contendere. The Board must
receive written notice of any such arrest, charge or criminal
conviction within 30 days ofthe occurrence of any or all of these
events.
(b) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s),
and officers, are under a continuing duty to report to the Board
any and all civil suits involving them that are based upon any
allegation of gross negligence, dishonesty, fraud,
misrepresentation or incompetency, or that in any way involve
an auction sale or a transaction related to an auction matter or
auctioneering. The Board must receive written notice of any
such civil suit within 30 days ofthe date the complaint in the suit
is served on the defendant in the action, or the date a pleading
containing one or more of these allegations is served on a party,
(c) All auctioneers, apprentice auctioneers and auction firms,
including their principals, principals and designated person(s)
and, officers, person(s). are under a continuing duty to report to
the Board any and all adminisfrative proceedings which are
commencedagainst them which involve any potential revocation
or suspension of, or other disciplinary action against, any auction
license or auctioneer license that they hold in another state. The
Board must receive written notice of any such administrative
proceeding within 30 days of the date the auctioneer, apprentice
auctioneer or auction firm, including its principals and officers ,
designated person(s). is notified of the administrative
proceeding.
Authority G.S. 85B-3(f); 85B-4.
SECTION .0500 - SCHOOLS OF AUCTIONEERING
.0501 APPLICATION FOR COURSE APPROVAL
(a) Schools of auctioneering seeking approval of their course
shall file an appl ication with the Board on the official school
stationery. The application shall include the following
information: accreditation by the Board shall complete a Board
approved application form.
(i) name, mailing address and telephone number of the
school;
(2) name, mailing address and telephone number of tlie
school—owner;
—
manager and any—other person
responsible for conducting the overall operation ofthe
school;
(3) physical location, including street address, of the
place where classes will be conducted;
(4) a list of all subject s to be tauglit and the number of
hours of instruction devoted to each subject;
(5) lesson outlines and accompanying handouts for each
subject to be taught ; and
(6) the minimum standards for instructors and verification
for each prospective instructor showing compliance
with the established standards as set forth in 21
NCAC 4B .0502(d).
(b) The school shall notify the Board within 30 days of any
change in the information required in Paragraph (a) of this Rule
and this requirement shall continue as long as the school remains
approved by the Board, by the above application form. This
requirement shall continue as long as the school remains
approved by the Board.
Authority G.S. 85B-3(f); 85B-4(d).
.0502 REQUIREMENTS FORAPPROVAL/MINIMUM
STANDARDS
14:23 NORTH CAROLINA REGISTER June 1, 2000 2045
PROPOSED RULES
(a) In order to be accepted as an approved school, and in
order to remain approved, the course curriculum must contain
classroom instruction in the following subjects for the minimiun
number of hours shown:
(1) Essential Core Curriculum (minimum 50 hours);
16 Hours- Bid Calling, Voice Control, Proper
Breathing Techniques,
and Use and Sequence of Numbers;
4 Hours - Advertising;
8 Hours - Auctioneers Law and Rules and
Regulations;
2 Hours - Uniform Commercial Code and Bulk
Transfers;
2 Hours - Drafting and Negotiating Contracts;
2 Hours - Closing Statements and Settlements;
8 Hours - Accounting and Mathematics;
1 Hour - Auctioneering Ethics;
2 Hours - Handling Sale Proceeds and Escrow
Accounts;
2 Hours - Auction Preparation and Setup;
3 Hours - Review and Testing (End of Course).
(A) Courses that include students that will become
North Carolina applicants must provide a
minimum of two hours of instruction on the
North Carolina Auctioneers Law and Rules,
G.S. 85B and 21 NCAC 4B; and
(B) a minimum of two hours of instruction as such
will be included within the minimum required
8 hours instruction of Auctioneers Law and
Rules and Regulations.
(2) Supplemental Instruction Areas (min. 30 hours):
Antiques Heavy Equipment
Real Estate Automobiles
Tobacco Cattle and Livestock
Environmental Issues Public Speaking
Computers Estate Sales
Firearms Appraising
Foreclosure & Bankruptcy
Sales Sales Tax Requirements
Art, Rugs, Jewelry Hygiene & Personal
Appearance
Body Language Ring Work
Farm Machinery Consignment Auctions
Minimum hours are not required in individual
supplemental subjects, however, all topics must be
addressed in the school.
(b) Students attending an approved course must attend and
successfully complete a minimum of 80 hours of classroom
instruction according to the list of subjects and minimum hours
of instruction in each subject specified in Paragraph (a) of this
Rule. An hour of creditable instruction is defined as 50 minutes
of classroom instruction or practical exercise accompanied by a
10 minute break.
(c) Each course offered must include instruction by a
minimum of five different instructors, at least two ofwhom must
be professional auctioneers. Regardless of the total number of
hours taught by any given instructor, no more than 20 hours of
an individual's instruction may be counted to satisfy the
requirements of Paragraph (a) of this Rule.
(d) The school shall establish standards for all persons who
instruct in an approved school with minimum training or
experience, or a combination thereof, in the particular field in
which they are instructing. In addition to the initial filing for
approval set forth in 21 NCAC 4B .0 5 01(a)(6), the school shall
annually fil e with the Board the school's established minimum
standards and verification for each instructor who has taught
during the preceding year showing compliance with the
standards.
(e) The school shall provide or make available suitable
facilities, equipment, materials and supplies necessary for the
course, specifically including:
(1) a comfortable, well-lighted and ventilated classroom
with a seating capacity sufficient to accommodate all
students; and
(2) audio-visual equipment and other instructional devices
and aids necessary and beneficial to the delivery of effective
training.
Authority G.S. 85B-3(f): 85B-4(d).
SECTION .0600 - GENERAL AUCTIONEERING
.0601 CHANGE OF ADDRESS OR BUSINESS NAME
OR OWNERSfflP
(a) All licensees shall notify the Board in writing of each
change or addition of residence or business address (including
mailing address) and change of trade name, assumed name, or
combination of names under which the licensee conducts
business related to auctions.
(b) In the case of a corporate l icensee, license, said licensee
shall immediately notify the Executive Director of any change in
the directors or officers of the corporation and such new
director(s) or officer(s) shall comply with the provisions of
Subparagraphs (d)(1), (4) and (5) (d)(1). (21 (31 (51 (6} and (7)
in Rule .0201 ofthis Subchapter. Ifthe new directors or officers
have a 5 1% or greater controlling interest in the corporation, the
firm license shall be retired and the firm shall apply for a new
license.
(c) In the case of a partnership license, said licensee shall
immediately notify the Executive Director of any change in
partners and such new partners shall comply with the provisions
of Subparagraphs (d)( 1 ), (4) and (5) (d)(n. (2). (3). (5). (6) and
(7} in Rule .0201 of this Subchapter.
(d) In the case of an auction fiim license, the licensee: shall i
iminediately noti fy the Executive Dii-ector of any change in
designated person(s) and such designated persons shall comply
with the provisions of Subparagraphs (d)(1), (4) and (5) in Rule
.0201 of this Subchapter. In the case of an auction firm license,
the licensee shall immediately notify the Executive Director of
any change in a designated person(s). If the designated person
is a currently licensed auctioneer under G.S. 85B. the designated
person shall be required to comply with the provisions of
Subparagraphs (d)(1). (61 aiid (7} in Rule .0201 of this
Subchapter. If the designated person is not a currently licensed
auctioneer under G.S. 85B. the designated person shall be
required to comply with the provisions of Subparagraphs (d)(1).
2046 NORTH CAROLINA REGISTER June 1, 2000 14:23
PROPOSED RULES
{2\ (3). (6) and (7) in Rule .0201 of this Subchapter.
(e) Any change in address, business name or ownership
required by these Rules shall be reported within 10 days of the
occurrence of such change.
Authority G.S. 85B-3(f).
.0602 ADVERTISING
(a) In all advertisements relating to an auction, the
auctioneer's, apprentice auctioneer's or auction firm's name and
license number shall be clearly given. If an auctioneer is
working for or in conjunction with an auction firm, such
relationships shall be disclosed and both license numbers shall
be clearly given. A general advertisement which does not
concern a specific sale(s) and which does not list sale dates,
times or locations, generally referred to as trolling or holding
advertisements, shall not be subject to any identification
requirement. A licensee may advertise under a name, assumed
name, trade name, or combination of names, only if written
notice has been previously filed with the Board. The licensee
shall also notify the Board of all certificates filed with any
county register of deeds in compliance with G.S. 66-68.
(b) Any licensee who advertises an "Estate Sale" shall
specifically disclose, in all advertisement materials, whether it is
the estate of a living or deceased person. Before conducting an
auction as an "estate sale", the majority of items in the sale shall
come from the estate of the living or deceased person(s). Other
items not related to or in an estate may be sold with an estate if
specifically disclosed at or before the time of the auction.
(c) It shall be a violation of these Rules to advertise a
"Bankruptcy Sale" unless the item(s) offered for sale, whether
real or personal, are fi-om an active bankruptcy action. Before
conducting an auction as a "bankruptcy sale", the majority of the
items in the sale shall come from the bankruptcy of one or more
parties. Other items not related to or from a bankruptcy action
may be sold with items from a bankruptcy action if specifically
disclosed at or before the time of the auction.
(d) It shall be a violation of these Rules to advertise an item,
either real or personal, as "Absolute" or "Without Reserve" ifthe
item is subject to confirmation, minimum bid, or any other
condition of sale. Before advertising an auction as absolute or
without reserve, the majority of items in the sale shall be offered
for sale absolute or without reserve. Items that are not absolute
may be included in the auction provided they are specifically
designated as such in all announcements or advertisements.
(e) It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Urgent", "Emergency",
"Distress" or any other word which connotates liquidation of
assets or that the buyers will, for some extraordinary reason, be
in a position to reap some unusual bargain without specifically
disclosing, in the written advertisement in a print size equal to
the descriptive word, the reason that the sale is "urgent", the
nature of the "emergency" or the cause of the "distress", etc.
(f) It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Seized", "Confiscated",
"Forfeited" or any other word which connotes a governmental
action whereby items are seized or taken by a govenmient
department, agency or commission and released or sold or that
the buyers will, for some governmental reason, be in a position
to reap some unusual bargain without specifically disclosing, in
the written advertisement in a print size equal to the descriptive
word, the exact nature of the goverrmient action.
(g) It shall be a violation of these Rules to advertise any items
as being fi-om an "estate" or a "bankruptcy", or from an "urgent",
"emergency", "distress", "seized", "confiscated", "forfeited" or
similar sale, unless the consignor of the item(s) to be sold is the
original owner of the item(s), the designated representative of
the owner, or a federal, state or local department, agency or
commission charged with disposing of the item(s), and
consigned the item(s) directly to the advertised sale.
(h) It shall be a violation of these Rules to:
(1) Reference the U.C.C. or any other imiform act or
federal or state law in any advertisement unless such
act or law is required, by law, to be referenced;
(2) Reference or mention any federal, state or local
department, agency or commission in any
advertisement unless specifically required by law to
do so or unless prior written approval is received from
such department, agency or commission; or
(3) Otherwise connote in any advertisement that the
auction is under the auspices of, at the direction of or
required by federal or state law or act or a federal,
state or local agency or commission and that the
buyers will, for some legal or governmental reason, be
in a position to reap some unusual bargain.
(i) It shall be a violation of these Rules to advertise for sale
items which the auctioneer/firm does not intend to offer for sale
at the advertised auction.
(j) It shall be a violation of these Rules for an auctioneer or
auction firm to permit its name or license number to appear on
any advertisement for an auction without reviewing the contents
of the advertisement prior to its publication to ascertain its
compliance with applicable law and Rules.
(k} It shall be a violation of these Rules to advertise any
auction using such descriptive words as "Contents". "Stock".
"Inventory". "Liquidation" or anx other word which connotes
that the items to be auctioned are present on the premises of a
residence, business, building or establishment unless the items
were physically present continuously for 30 days prior to the
signing of the contract or written agreement Before conducting
an auction using any of the descriptive words, the majority ofthe
items in the sale shall be fi"om the premises. Other items not
related to or from the contents of the residence or business may
be included in the auction provided they are specifically
designated as such in all advertisements previous to the sale.
The 30 day requirement shall not apply to items used in direct
conjunction with the residence or business and brought to the
site solely for the purpose of sale at auction.
Authority G.S. 85B-1; 85B-3(f); 85B-8(a)(4).
.0605 BIDDING
No auctioneer/firm shall bid on items in a sale he is
conducting or procure such a bid without the intent to purchase
the item. However, in a sale with reserve, the auctioneer/firm
may bid on the reserve item up to, and including, the amount of
14:23 NORTH CAROLINA REGISTER June 1, 2000 2047
PROPOSED RULES
the reserve price without the intent to purchase the item. In any
auction where the auctioneer/firm bids on an item in a sale being
conducted by such auctioneer/firm or such auctioneer/firm
procures such a bid, the auctioneer shall announce such bidding
in advance of the auction.
Authority G.S. 25-2-328(4); 85B-3(f).
SECTION .0800 - CONTINUING EDUCATION
.0801 CONTINUING EDUCATION COURSE
(a) To renew a license on active status, an auctioneer,
apprentice auctioneer, or designated person(s) in an auction firm
shall complete a Board approved course(s) consisting of the
hours of instruction as established in Subparagraph (d) of this
Rule and shall provide documentation of completion of the
above Board approved course(s) within one vear preceding
license expiration.
(1) "Within one vear preceding license expiration time
period" shall be defined as May 1 6 to the following
May 15.
£2) An auctioneer, apprentice auctioneer, or designated
person(s) in an auction firm shall provide
documentation on required continuing education
courses by the May 1 5 deadline ofthe current renewal
period.
(3) If the required documentation is not received by the
established deadline as set forth in Subparagraph (2)
of this Rule, the licensee will automatically be
assessed a late fee as set forth in Subparagraph
.0202a))(lQ) of this Subchapter.
(4) The renewal shall not be processed until compliance
is achieved and the required fees are received as set
forth in Subparagraph .0402(b) of this Subchapter.
(h) The Board shall approve courses that shall be conducted
by sponsors approved by the Board under this Rule. The subject
matter of this course shall be determined by the course sponsor
subject to Subparagraph (h) of this Rule. The course sponsor
shall produce or acquire instructor and student materials. The
course must be conducted as prescribed by the rules in this
Section. At the beginning of the course, sponsors must provide
licensees participating in their classes a copy of the student
materials developed by the sponsor.
(c) Approval of a sponsor to conduct a course authorizes the
sponsor to conduct the course using an instructor who has been
approved by the Board as a course instructor under Rule .0804
of this Section. The sponsor may conduct the course at any
location as frequently as is desired during the approval period.
(d) The Board shall establish at its April monthly Board
meeting of each year the minimum classroom hours of
instruction for the upcoming year. Upon receipt of renewal,
licensees shall be notified of the required minimumhours for the
following year's renewal.
(e) An auctioneer, an apprentice auctioneer, or a designated
person(s) in an auction firm shall complete the continuing
education requirements for each renewal period that their license
was lapsed or suspended.
(f) Credit hours applied to the current renewal of a license
shall not be used for fiittire renewals.
(g) Excess continuing education hours may be carried
forward as credits for a maximum of one renewal year.
(h) The Board shall have the authority in its discretion to
mandate the topic(s) for all or part of an approved course.
£i} No part of any prelicensing course curriculum shall count
as continuing education credit hours.
(]} Continuing education shall not be required until the second
renewal after initial licensing pursuant to G.S. 85B-4(e).
Authority G.S. 85B-4.(el).
.0802 APPLICATION FOR ORIGINAL APPROVAL
(a) An entity seeking original approval to sponsor a course
must make application on a form prescribed by the Board. The
applicant must submit a nonrefundable fee of one hundred
dollars ($100.00) which may be in the form of a check payable
to the North Carolina Auctioneers Commission; provided,
however, that no fee is required if the entity making application
is a community college, junior college, college or university
located in this State and accredited by the Southern Association
of Colleges and Schools, is an agency of federal, state or local
govenmient. or an incorporated trade organization or an
association of licensees to whom the Board has donated fijnds
pursuant to G.S. 85B-4.1(c). An applying entity that is not a
resident of North Carolina shall also file with the application a
consent to service df process and pleadings.
(b) Approval to sponsor a course shall be granted to an
applicant upon showing to the satisfaction of the Board that:
(1) The applicant has submitted all information required
by the Board and paid the application fee, if
applicable;
(2) The applicant has at least one proposed instructor who
has been approved by the Board as a course instructor
under Subsection .0804 of this Section;
(3) The applicant satisfies all of the requirements of Rule
.0805 of this Section relating to qualifications or
eligibility of course sponsors; and
(4) The applicant and the continuing education
coordinator required by Rule .0805 Paragraph (e)
must be truthfiil. honest and of high integrity. In this
regard, the Board may consider the reputation and
character of any owner, officer or director of any
corporation, association or organization applying for
sponsor approval.
Authority G.S. 85B-4(el).
.0803 STUDENT FEE FOR COURSES
Sponsors of a course may establish the amount of the fee to
be charged to students taking this course; provided, however,
that the established fee must be an all-inclusive fee and no
separate or additional fee may be charged to students for
providing course materials, providing course completion
certificates, reporting course completion to the Board, or for
recouping similar routine administrative expenses.
Authority G.S. 85B-4(el).
2048 NORTH CAROLINA REGISTER June I, 2000 14:23
PROPOSED RULES
.0804 APPROVAL OF CONTINUING EDUCATION
INSTRUCTORS
(a) Approval of course instructors shall be a